Selva Vinayagam a/l Sures v Timbalan Menteri Dalam Negeri, Malaysia (05(HC)-270-11/2019(B))

“Legislation against subversion, action prejudicial to public order, etc.

(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or

(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or Page 8 of 21

(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or

(d) to procure alteration, otherwise than by lawful means, of anything by law established; or

(e) which is prejudicial to the maintenance of the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof: or

(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof, any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.” [18] Paragraphs (e) and (f) were added into Clause 1 pursuant to the Constitutional Amendment Act 1978 (Act 442); the effect of which was to introduce a totally different aspect and even purposes from the original provision (See A. J Harding, Law, Government and the Constitution in Malaysia (1996) 209). Therefore, the ambit of Art. 149 has been enlarged to deal with, not just with subversion, but with any social problem, notably drug-trafficking, by use of special powers transgressing the fundamental-rights provisions of the FC. [19] Accordingly, Act 316 is a special specie of enactment on preventive detention under which the fundamental liberties prescribed under Article 5 (Liberty of the person), 9 (Prohibition of banishment and freedom of movement), 10 (Freedom of speech, assembly and associations) and 13 (Right to property) may be circumscribed. Page 9 of 21 [20] In this context, one can appreciate the scheme of Act 316 in general, and of the power of preventive detention under sub-s 6(1) in particular. Sub-section 6(1) is as follows:

“Power to order detention and restriction of persons

(a) the complete report of investigation submitted under subsection 3(3); and

(b) the report of the Inquiry Officer submitted under subsection 5(4), is satisfied with respect to any person that such person has been or is associated with any activity relating to or involving trafficking in dangerous drugs, the Minister may, if he is satisfied that it is necessary in the interest of public order that such person be detained, by order (hereinafter referred to as a “detention order”) direct that such person be detained for a period not exceeding two years. “ Preventive Detention Laws [21] What is preventive detention? Preventive detention has been variously described as (i) an imprisonment that is putatively justified for non-punitive purposes, most often to prevent criminal acts, (ii) the imprisonment of a person with the aim of preventing him from committing further offences or of maintaining public order, and (iii) the holding of someone in jail or in an institution because he or she is regarded as a danger to the community. The singular feature of preventive detention is that the detenu is subject to detention without trial on the assumption that his release would not be in the best interest of society—specifically, that he would be likely to commit additional crimes if he was released. Page 10 of 21 [22] Preventive detention can also be described as the exercise of the powers of Executive detention. Executive detention is detention at the instance of the Executive for an indefinite period without charge and without trial. It is typically imposed as a result of an administrative decision, taken in private, by government officials. Executive detention is designed to be employed in advance - as a preventive measure. Therefore, a detenu is detained not for what he has done, but for what he might do in the future if he remained at liberty. [23] That the liberty of the person is a fundamental constitutional right cannot be overstated. The same can arguably be said for the fundamental rights provided under Articles 9, 10 and 13 of the FC. [24] However, the fact that the State can assume exceptional powers to restrict the freedom of its citizens is sanctioned under the FC. A perusal of Articles 5, 9, 10 and 13 of the FC shows that the rights in question are qualified and not absolute. The Article 5 right to life and liberty is qualified in that it may be restricted “in accordance with law” (see Clause (1) of Art. 5). The same qualifying words are applied for the restriction on the right to property (See Clause (1) of Article 13). Article 9 on the right to freedom of movement and Article 10 on the right to freedom of speech, assembly and association are also qualified as Parliament may by law impose restrictions on such rights (See Clause (3) of Article 9 and Clause (2)(a)-(c) of Article 10). [25] In this connection, Article 149 of the FC permits derogation from Articles 5, 9, 10 and 13 of the FC in respect of legislation ‘against subversion, Page 11 of 21 action prejudicial to public order, etc’. Therefore, Article 149 is a special provision under the FC as it authorizes Parliament to enact laws which circumscribe the fundamental rights under Articles 5, 9, 10 and 13. [26] Given that the Articles 5, 9, 10 and 13 rights are fundamental, it is not unexpected for Article 149 and enactments restricting these fundamental rights to come under critical scrutiny. Article 149 has been described as a provision which “… gives great powers of government to Parliament when Parliament chooses to exercise those powers. Parliament’s Act must ‘recite’ that action has been taken or threatened. The actions or threats which could give rise to such appears as broad as language could provide for.” (See Sheridan & Groves, The Constitution of Malaysia (Malayan Law Journal, 5th Edition, 2004) at p 594). Learned author Andrew Harding noted that whilst Article 149 of the FC allows Article 5, as well as other fundamental rights provisions, to be overridden, “[o]ne of the difficulties with legislation as broad in substantive scope as it is narrow in procedural protection is that there is potentially no limit to the types of cases that can be regarded as coming under it.” (See Andrew Harding, The Constitution of Malaysia, A Contextual Analysis (Hart Publishing, 2012) at pp 172, 176); see also Abdul Aziz Bari, Malaysian Constitution, A Critical Introduction (The Other Press, 203) at pp192-197). According to another learned author Professor Shad Saleem Faruqi, a parliamentary law under Article 149 is permitted to violate only four fundamental rights – Articles 5, 9, 10 and 13. The clear intention of the FC is that Article 149 can prevail over Articles 5, 9, 10 and 13 only; that Article 149 cannot override fundamental liberties on Articles 6, 7, 8, 11 and 12 (See Shad Saleem Faruqi, Document of Destiny, The Constitution of the Federation of Malaysia, (Star Publications, 2008) at pp 661-2). Page 12 of 21 [27] It must, however, be appreciated that the guaranteed right to personal liberty is not freedom from executive detention as described in para. [22] above, but to freedom from executive detention not authorised by law. It is the lack of legal authorisation which is the subject of prohibition. What is important is that the existence of such powers and its exercise must be clearly prescribed under the law. [28] Therefore, whilst Article 149 authorises the abridgement of fundamental rights, there are two built-in constitutional safeguards provided by Clause (1) of Article 151.

Restrictions on preventive detention

(a) the authority on whose order any person is detained under that law or ordinance shall, as soon as may be, inform him of the grounds for his detention and, subject to Clause (3), the allegations of fact on which the order is based, and shall give him the opportunity of making representations against the order as soon as may be;

(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.

Schedules Every schedule (together with any note or table annexed thereto) to an Act or to any subsidiary legislation shall be construed and have effect as part of the Act or subsidiary legislation. [38] Section 15 was amended to read as follows:

Long title, preamble and schedules The long title and preamble and every schedule (together with any note or table annexed to the schedules) to an Act or to Page 16 of 21 any subsidiary legislation shall be construed and have effect as part of the Act or subsidiary legislation. [Amendments underlined] The amendments in s 15 took effect retrospectively on 18.5.1967: see sub-s 3(2) of the Amending Act. Be that as it may, pre-amendment, s 15 only requires every schedule to an Act to be interpreted as part of the Act. The amended s 15 further requires the long title and preamble to be interpreted and have effect as part of the Act. [39] It is also important to note that concomitant with the amendments to s 15, s 17A was inserted by the Amending Act to emphasize that in construing a provision of an Act, due regard must be had to the purpose or object of the Act. Section 17A which came into force on 25.7.1997 reads as follows: Regard to be had to the purpose of Act 17A. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. [Underlined added] [40] The declared purpose of the Interpretation Acts as manifested in the long title to the Act was for the application, construction, interpretation and operation of written laws. Read in this light, s 17A underscores Parliament’s intention that the interpretation and construction of any written law shall have regard to the underlying purpose or object of the Act. And s 15 as amended further emphasizes the point by stating that the long title and preamble and every schedule shall be construed and have effect as part of the Act. That in Page 17 of 21 our view is the codification of purposive rule of construction, which is not merely confined to the provision of a section of the Act, but also includes the purpose or object manifest in the long title and preamble of the Act. [41] The words ‘purpose or object underlying the Act’ bear particular significance in the interpretation of preventive laws promulgated pursuant to Art. 149 of the FC. The purpose of Art. 149 of the FC is clear. It affirms the validity of legislation enacted against subversion, action prejudicial to public order, etc. notwithstanding that such legislation may be at variance with the fundamental liberties contained in Articles 5, 9, 10 or 13 of the FC. [42] Act 316 is one such legislation. Act 316’s underlying purpose is self-evident in its long title and preamble – (i) the preventive detention of persons involved in illicit drug trafficking activities, and (ii) to stop action which has been taken or is being threatened by a substantial body of persons which is prejudicial to public order. [43] It is settled law that whilst the material provisions of preventive detention laws must be strictly construed, safeguards which the law provides for the protection of any person must be liberally interpreted. By reason of the foregoing, careful consideration must therefore be given to the scheme of sub-s 6(1) both under the FC and Act 316. [44] What is meant by the phrase ‘a substantial body of persons’? The word ‘substantial’ has been defined by the Oxford Advanced Learner’s Dictionary Fifth Edition as ‘large in amount or value; considerable’; ‘considerable’ is defined as ‘great in number or size’. ‘Body’ is defined as ‘a group of people Page 18 of 21 working or acting as a unit (See Oxford Advanced Learner’s Dictionary Fifth Edition) or as ‘[a] number of individuals spoken of collectively, usually associated for a common purpose, joined in a certain cause or united by some common tie.’ (See Words, Phrases & Maxims – Legally & Judicially Defined Vol. 2. Anandan Krishnan, LexisNexis 2008). The word ‘person’ refers to a human being as an individual or a human being, especially not identified (See Oxford Advanced Learner’s Dictionary Fifth Edition). In the light of the foregoing, we think that the phrase ‘a substantial body of persons’ refer to a large number of individuals acting in concert or working together for a common purpose. In the context of Act 316, we think that it refers to action which is prejudicial to public order which has been taken or is being threatened by a large number of individuals acting together in the trafficking in dangerous drugs. [45] Notably, sub-s 6(1) refers to two factors - (i) authorizes the Minister to exercise his power to make a detention order if he is satisfied that such person is involved in illicit drug trafficking activities and that (ii) it is necessary in the interest of public order to make the detention order. What is significant is the omission to refer to the involvement of ‘a substantial body of persons’ in relation to the public order element; which scope is clearly stated in the preamble as ‘action which is prejudicial to public order … has been taken … by a substantial body of persons…’. [46] In the light of ss 15 and 17A of the Interpretation Acts, we are of the view that the purpose and object of Act 316 should be read into sub-s 6(1) in order to give it the meaning intended by Parliament when it enacted Act 316 under the authority of Art. 149 of the FC. This is particularly important Page 19 of 21 as Art. 149 which provides for special powers against subversion, etc gave justification for substantial restrictions on fundamental liberties even under normal circumstances (i.e., to say, other than during an Emergency). We say so for two reasons. To construe sub-s 6(1) without reading into it the purpose of the Act would be (i) to render the declared purpose and object which is spelt out in the Long Title and Preamble as mere verbiage, and (ii) to render otiose the provisions of ss 15 and 17 of the Interpretation Acts. [47] For the foregoing reasons, we think that the respondent’s argument that the Long Title and Preamble is not relevant for the purposes of interpreting sub-s 6(1) is incongruous. It is clear that the power under sub-s 6(1) may only be exercised if the following three key ingredients are set out in the grounds of the detention order and allegations of fact. One, that the activity which has been taken or is being threatened by a substantial body of persons relates to or involves the trafficking in dangerous drugs. Two, that the detenu is a member of a substantial body of persons. Three, that the Minister is satisfied that it is necessary in the interest of public order that the detenu be subject to preventive detention. [48] It also goes without saying that the Courts must be vigilant in individual cases to ensure that the Executive acts within the law and does not encroach unnecessarily into the fundamental liberties of the person. We have scrutinized the grounds of the detention order, the allegations of fact and the Deputy Minister’s affidavit. We agree with counsel for the appellant that the only allegation is that the appellant is acting alone. There is no allegation that the appellant’s activities were being carried out in association with or involved a substantial body of persons. Page 20 of 21 [49] The authorities cited by SFC, Tan Boon Liat (supra) and Johnson Tan Ham Seng, (supra) were decided before the amendment to s 15 of the Interpretation Acts. As such, we do not think that they are still applicable insofar as they relate to the construction of the long title and preamble to an Act. In Ahmad Yani [2005] (supra), Heliliah J (as she then was) held that the recital or preamble to the Internal Security Act 1960 (ISA) provides merely a guide as to the object of the ISA; N S Bindra’s, Interpretation of Statutes (8th Edn, 1997) was cited in support. We have two points to make. One, N B Bindra’s book was published before s 15 of the Interpretation Acts was amended; as such the opinion of the learned author must be qualified by the amended s 15. Second, although Ahmad Yani was decided after the Amending Act, the amended s 15 was not considered by the learned judge; had she done so, more probably than not, that she would have decided otherwise. For these reasons, Ahmad Yani is distinguishable and overruled. Yuneswaran (supra) concerns the interpretation of sub-s 9(1) of the Peaceful Assembly Act 2012 (PAA). In that case the Court of Appeal adopted the purposive approach pursuant to s 17A of the Interpretation Acts. It departed from the earlier decision in Nik Nazmi Nik Ahmad v PP [2014] 4 CLJ 944 CA which held that sub-s 9(5) of the PAA was unconstitutional. As in Ahmad Yani, the Court of Appeal in Yuneswaran did not apply s 15 of the Interpretation Acts; neither did the Court of Appeal construe and give effect to the long title and preamble as part of the PAA. In the circumstances, Yuneswaran is distinguishable and of no aid to the respondent’s argument. [50] We are, therefore, constrained to hold that the fact of the appellant acting alone cannot be deemed to fall within the ambit and scope of scrutiny under Act 316; which scope is explicitly confined to a substantial body of Page 21 of 21 persons. The omission in setting out all the three vital ingredients indicates that the mind of the Deputy Minister was really not applied to the question of the preventive detention of the appellant in this case. There was a failure to comply strictly with the letter of the rule of law. Consequently, the exercise of power by the Deputy Minister in the circumstances of this case is bad in law. [51] For the foregoing reasons, we hold that the detention order is ultra vires Art. 149 of the FC and Act 316. It follows that the detention order is a nullity and is hereby set aside. A writ of habeas corpus is hereby issued and the appellant is set at liberty forthwith. sgd (Vernon Ong) Judge Federal Court Malaysia Dated : 11th December 2020 Counsel: For the Appellant: Najib bin Zakaria Messrs. Najib Zakaria, Hisham & Co For the Respondent: Muhammad bin Sinti Senior Federal Counsel