Article 149 of Federal Constitution tutorial work PDF

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Article 149 of Federal ConstitutionIn our nation, Article 149 of FC gives Parliament the power to enact special laws to stop or prohibit any actual or threatened action by a large body of citizens, which Parliament considers to be prejudicial to public order, to encourage hostility between races, an...

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Article 149 of Federal Constitution

In our nation, Article 149 of FC gives Parliament the power to enact special laws to stop or prohibit any actual or threatened action by a large body of citizens, which Parliament considers to be prejudicial to public order, to encourage hostility between races, and so on. These laws do not have to be consistent with 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). As such, first of all, looking at Article 149, what is the definition of subversion? Pursuant to Article 149(1), it states that it is the cause of substantial number of citizens to fear, organized violence against persons or property; exciting disaffection with the YDPA or any government in the Federation; the promotion of ill-will among classes of the population in a manner likely to cause violence; alteration, other 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. As has already been stated, the Parliament has passed controversial acts such as the former Internal Security Act 1960 (ISA) and the Dangerous Drugs Act 1985, SOSMA 2012 and POTA 2015. As such, in the sense of Article 149, the question arises as to whether there is a need for powers against subversion. Well, basically, yes. This is because the steps need to be taken to deal with any potential attempts by a substantial body of individuals who are responsible for violence against an individual or property. That being said, "emergency powers" can only be exercised by executives until a debate is held in Parliament. As far as "powers against subversion" is concerned, it can only be exercised after a debate in Parliament. In the case of Cheng Poh v PP, the action referred to in Article 149 must be bona fide for the purpose of avoiding or preventing subversion. The effect of Article 149 is to validate what is supposed to be invalid pursuant to Articles 5,9,10 or 13 as set out in PP v Musa. Based on Musa's situation, the detainee was previously under the administration detention under Internal Security Act. There is, however, no bar to a subsequent criminal trial on the same set of facts. In other words, normally the individual cannot be detained again with the same set of facts, but it is possible to do so under the "power against subversion." In addition to the above, controversial actions such as the ISA are an illustration of an act passed pursuant to Article 149. Section 8(1) of the ISA, which provides, where the Minister is satisfied that the detention of any person is appropriate in order to prevent him from behaving

in any way that would be detrimental to the security of Malaysia. Any part thereof, or for the maintenance of essential services therein or for the economic life thereof, may make an order directing the person to be detained for a period not exceeding two years. In addition, section 73 of the ISA provides that a police officer may without a warrant, arrest a person if he has 'reason to believe' that there are grounds for allowing him to be detained under Section 8 and that person has acted or is about to act or is likely to act in any way that would be harmful to the security of the country. He may be detained for up to 60 days. In addition, pursuant to Section 9(7), the order of the Minister may be renewed from time to time so that a person may be detained indefinitely. However, ISA was later repealed with SOSMA 2012. Besides ISA, EPOPCO was also enacted in 1969 pursuant to Article 150 of the FC. Section 4(1) states that if the Minister is satisfied with a view to preventing him from behaving in any way that would be harmful to public order, it is appropriate for the person to be detained, or for the suppression of violence or the prevention of violence, that the person should be detained, the Minister shall make an order directing the person to be detained for a period not exceeding two years. However, also EPOPCO was repealed in 2013 at a later date. For POTA 2015, a person can be detained for up to 2 years without trial. There will be no court reviews and the detentions will only be reviewed by the Special Detention Board. However, we can see a judicial review of legislation based on a variety of cases. One of the cases will be Ketua Polis v Gan Bee Huat, where the Dangerous Drugs Act 1988 authorizing the seizure of property without reimbursement is found to be in violation of Article 13, but is saved pursuant to Article 149. According to the case of PP v Yee Kim Seng, ISA, which imposed the death penalty for unlawful possession of explosives, was considered to be beyond the competence of Article 149. As stated earlier, ISA was repealed under SOSMA 2012. Section 4(3) of SOSMA provides that no person shall be arrested and detained in accordance with this section solely on the grounds of his political belief or political activity. This can be seen in the famous case of Maria Chin v Director General of Immigration. Maria Chin was detained under the SOSMA on the eve of the Bersih 5.0 rally when the police raided the Bersih office on 18 November 2016. Maria was arrested under Section 124C of the Penal Code, which provides for an attempt to commit an activity that are harmful to parliamentary democracy. Maria argued that her arrest was based purely on her political belief, as well as intimidating the general public about participating in the rally. Maria Chin contended that her ten-day imprisonment was not justified by the law because it was unfair, unjust and inhumane. She

said that she was in solitary confinement in a windowless cell with toilet space and had to sleep on a concrete floor supported only by a wooden plank without any mattress, pillow or blanket. In addition to this condition, Maria Chin was 61 years of age at the time and had numerous medical problems, such as hypertension and osteoarthritis. As a consequence, looking at SOSMA 2012, it is considered to be a stronger piece of legislation compared to that. In contrast, SOSMA permits only 28 days of detention without trial, while the ISA permits 60 days of detention until a two-year extension by the Ministry of Home Affairs. It clearly states that SOSMA is a procedural law which operates in a manner similar to that of the CPC. Therefore, when a person is detained under SOSMA, he or she is legally arrested for the crimes set out in Chapter VI or Chapter VII of the Penal Code. Through SOSMA, the Royal Malaysian Police can only prohibit the detainee from meeting his or her family members and refuse access to legal counsel for the first 48 hours. In regards, the granting of bail is usually at the discretion of the court. However, in cases under SOSMA, the courts no longer enjoy this power and cannot provide for bail. The violation of SOSMA for political reasons has already been verified with the detention of 1Malaysia Development Berhad complainant Khairuddin Abu Hassan and Khairuddin lawyer Matthias Chang. In conclusion, therefore, the only protection retained by the detainees in respect of the laws enacted regard to Section 149 and 150 is pursuant to Article 151. Accordance with Article 151, the detaining authority must notify the detainee of the reasons for his detention, the allegation of the facts on which the detention order is based and the opportunity of making representations against the order as soon as may be. The courts have been able to intervene with the detention order on procedural grounds....