Article 149 of FC PDF

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CONSTITUTIONAL LAW II ARTICLE 149 OF FC

In our country, Article 149 gives power to the Parliament to pass special laws to stop or prevent any actual or threatened action by a large body of persons which Parliament believes to be prejudicial to public order, promoting hostility between races and so on. Such laws do not have to be consistent with the fundamental liberties under Articles 5 (Right to Life and Personal Liberty), 9 (No Banishment from Malaysia and Freedom of movement within Malaysia), 10 (Freedom of Speech, Assembly and Association) or 13 (Rights to Property). So, firstly looking into Article 149, what is the meaning of subversion? According to Article 149(1), it states that it is the causing of substantial number of citizens to fear, organised violence against persons or property; exciting disaffection against the YDPA or any government in the Federation; promoting ill-will between classes of the population in such way as is likely to cause violence; procuring alteration, otherwise than by lawful means, of anything by law established; prejudicing the maintenance of any supply or service to the public or even causing prejudice order or national security. So, as mentioned, because of subervsion, the parliament has passed controversial acts as such former Internal Security Act 1960 and the Dangerous Drugs Act 1985, SOSMA 2012 and POTA 2015. So, talking about Article 149, it comes to a question whether is there a need for powers against suberversion? Basically, yes. This is because the measures are needs to deal with any futher attempts of the substantial body of persons who causes violence against a person or property. However, the “emergency powers” only can be exercised by the executives even before the parliament sat for a debate. As for, “powers against subervsion”, it can only be exercised after a debate in the Parliament. In the case of The Cheng Poh, the action between under Article 149 must be bona fide for the purpose of stopping or preventing subversion. The effect of Article 149 is to validate what is supposed to be invalid under Articles 5,9,10 or 13 as stated in PP v Musa. Based on Musa’s case, the detainee was previously under the administration detention under ISA. However, there is no bar to a subsequent criminal trial on the same set of facts. In other words, usually the person cannot be detained again with the same set of facts but unde the “power against suberversion”, it is possibly done. In addition to the statement above, controversial acts such as the ISA is an example of an Act passed under Article 149. S 8(1) of the ISA which provides if the minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof, he may make an order directing that person to be detained for any period not exceeding two years. S.73 of the ISA further provides that a police officer may without warrant arrest a person if he has ‘reason to believe’ that there are grounds which would allow his detention under S 8 and that person has acted or is about to act or is likely to act in any manner prejudicial to the security of the country. He can be detained up to 60 days. Furthermore, under S.9(7), the order of the minister may be renewed from time to time so that a person can be detained indefinitely. However, later then ISA has been repealed with SOSMA 2012. Besides ISA, EPOPCO was also enacted in 1969 pursuant to Article 150 of the FC. S.4(1) states that if the minister is satisfied with a view to preventing him from acting in any manner prejudicial to public order it is necessary that that person should be detained, or that it is necessary for the suppression of violence or the prevention of crimes involving violence that that the person should be detained, the Minister shall make an order directing that that person be detained for any period not exceeding two years. However, later then again even EPOPCO

has been repealed in 2013. For POTA 2015, it can detain a person without trial up to 2 years. There won’t be any judicial reviews and the detentions will be reviewed only by Special Detention Board. Nevertheless, we can see judicial review of legislations based on certain casses. One of the case will be Ketua Polis v Gan Bee Huat where Dangerous Drugs Act 1988 authorizing seizure of property without compensation is held to be violation of Art 13 but it is saved under Article 149. According to the case of PP v Yee Kim Seng, ISA prescribing the death penalty for unlawful possession of explosives was held to be within the powers of Art 149. Under SOSMA 2012, as mentioned ealier, ISA has been repealed by it. Section 4(3) of SOSMA states that no person shall be arrested and detained under this section purely for his political belief or political activity. This can been seen in the famous case of Maria Chin. Maria Chin was detained under the SOSMA on the eve of the Bersih 5.0 rally when police raided the Bersih office on Nov 18, 2016, Maria was arrested under Section 124C of the Penal Code which states the attempt to commit an activity detrimental to parliamentary democracy. Maria contended that her arrest was based solely on her political belief as well as to intimidate the public generally about participating in the rally. Maria chin claimed that her 10 day detention was not justified under the law because it was cruel, oppressive and inhumane. She claimed that she was in solitary confinement in a windowless cell inclusive of toilet space and had to sleep on a concrete floor supported only by a plank of wood without any mattress, pillow or blanket. In addition to this situation, Maria Chin was of the age of 61 at the time and was suffering from various health ailments such as hypertension and osteoarthritis. Thus, looking into SOSMA 2012, it is known to be a better piece of legislation when compared to. In comparison, SOSMA only permits 28 days of detention without trial while the ISA permitted 60 days of detention before two years’ extension by the Ministry of Home Affairs. It states clearly that SOSMA is a procedural law which operates in a manner similar to the CPC. As such, when a person is detained under SOSMA, he or she is technically arrested for crimes outlined in Chapter VI or Chapter VII of the Penal Code. Under SOSMA, the Royal Malaysian Police can only prevent the detainee from meeting his or her family members and deny any access to legal counsel for the first 48 hours. Besides that, the granting of bail is usually up to the discretion of the court. However, for cases under SOSMA the courts no longer enjoy this discretion and cannot provide bail. The abuse of SOSMA for political reasons was already validated with the detention of 1Malaysia Development Berhad complainant Khairuddin Abu Hassan and Khairuddin’s lawyer, Matthias Chang. So, as a conclusion, the only protection detainees have for laws passed under Article 149 and 150 is under Art 151.Under Art 151, the detaining authority must inform the detainee grounds of his detention, allegations of fact on which the detention order is based, and an opportunity of making representations against the order as soon as may be. The courts have been willing to interfere with detention orders on procedural grounds....