General Issues Concerning the Power of Preventive Detention and the Evaluation of this Power under the Federal Constitution of Malaysia, 1957

The exercise of the power of preventive detention is considered an imperative necessity to adequately contain the dangers posed to the security and safety of nation. However, the extraordinary scope of the power often persuades the executive to use this power for extraneous purposes. Notwithstanding such a risk, Article 149 of the Federal Constitution of Malaysia empowers the Parliament to enact preventive laws, which authorize the executive to exercise the power of preventive detention without the precondition of an emergency. In this Chapter, an attempt will first be made to shed light on the general issues pertaining to the power of preventive detention. In particular, the definition of preventive detention, the necessity of the exercise of the power of preventive detention and the possibility of abuse of such power will be scrutinized. Second, the evolution of the power of preventive detention in Malaya during the British rule will be discussed. Third, an endeavour will be made to evaluate the provisions of the Malaysian Constitution permitting the enactment of preventive detention laws. Finally, the safeguards stipulated by the Constitution for mitigating harshness of preventive detention laws will be examined.