Reconciling Section 8 B of the ISA with the provisions of the Federal Constitution

In 1988, the government led by former Prime Minister Mahathir amended the ISA to explicitly limit the court from reviewing the merits of ISA detention. Section 8B of the Internal Security Act (ISA) prevents courts from reviewing the merits of ISA detentions, thus leaving detainees without any effective recourse to challenge their detention. Although the law leaves room for review of “procedural requirements,” the deference granted by the courts to the government in ISA cases is so great that even this lone avenue of challenge has been of limited use.

Section 8B of the ISA, forbids judicial review of ISA detentions, including those brought as habeas corpus petitions. Section 8B provides: “There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong [the Malaysian king] or 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 in this Act governing such act or decision.”

The writ of habeas corpus has historically served as a remedy against unchecked power of the executive. This right is guaranteed in the Malaysian Federal Constitution under Article 5 ( 2 ) : “Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.” But in the context of the ISA, by amending the law in 1988 the government stripped the courts’ jurisdiction from reviewing the legality of detention in violation of international law and the Malaysian Constitution.

Section 8 B raises an interesting issue. There seems to be a conflict with the provisions of the Constitution. This Section 8 B seems to conflict with Article 5 which vests in the Malaysian courts a power to intervene in detentions. Under Article 4 " This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void." This Article points to the supremacy of the provisions of the Constitution. It can be argued that since Section 8B of ISA conflicts with Article 5 ( 2 ) of the Constitution, therefore by virtue of Article 4 the provisions of Section 8 B of ISA can be rendered void and therefore the courts can retain their power to intervene under Article 5. However much would depend on the approach taken by the Malaysian Courts and the current approach indicates a rather conservative approach which is subservient to the will of the Malaysian Parliament rather than that of the Malaysian Constitution.

Post was written by the author of this blog with some provisions extracted from http://www.hrw.org/reports/2005/malaysia0905/5.htm