Special Powers – Articles 149, 150 & 151

Article 149 – Constitutional Power to Combat Subversion

Constitutional Text & Scope

• Article 149 empowers Parliament to enact laws “designed to stop or prevent” any action, “taken or threatened” by “any substantial body of persons, whether within or outside the Federation,” that is prejudicial to:
  • Public order or security
  • The defence or sovereignty of the Federation or any part thereof
  • The running of essential services or the life of the community
• A recital in the statute is mandatory to the effect that Parliament “is satisfied that action has been taken or threatened …” (Art 149(1)).

Definition of “Subversion”

Parliament has adopted a deliberately broad definition (see Internal Security Act 1960). “Subversion” covers:

• Armed insurrection or violent overthrow
• Non-violent activities such as:
  • Narcotic trafficking
  • Vicious or “vigorous” criticism of official policies
  • Industrial strikes
  • Mobilising voters to oust the government
  • Any conduct prejudicial to public order

Judicial View

Theresa Lim Chin Chin v PP & Mohammad Ezam v PP confirm that Art 149 is not confined to communist insurgencies. Mohd Dzaiddin CJ: “The purpose and intent of the ISA is for all forms of subversion, though it was more directed at communist activity prevailing when it was enacted.”

Preconditions to Enact a Law under Art 149

1. No need for subversive activity to be continuing when the law is passed.
2. Body of persons must be “substantial.”
3. They may operate anywhere in the world – territorial nexus with Malaysia is unnecessary.
4. Only a “fear” of harm is required; actual harm in Malaysia is unnecessary.

Characteristics of an Art 149 Law

• May be prohibitive (e.g. criminalise acts) and/or punitive (e.g. impose penalties).
• Independent of any emergency; Art 150 need not be invoked.
• Until 1960 such laws lapsed after $1$ year. Today they have no automatic sunset.
• Termination is possible only by:
  1. Repeal by ordinary Act of Parliament.
  2. Annulment by resolution of both Houses.
  3. Inclusion of an internal sunset clause.
  4. Requirement of periodic parliamentary renewal.

Fundamental Rights That May Be Impinged

Art 149(1) expressly allows inconsistency with – and thus suspension of – Articles 5 (personal liberty), 9 (movement), 10 (speech & assembly) and 13 (property).

• PP v Musa: any Art 149 measure is valid “notwithstanding” inconsistency with those Articles.
• Other Part II liberties remain intact unless the statute uses clear words to remove them.
  • Gan Bee Huat: forfeiture of property under Dangerous Drugs (Forfeiture of Property) Act upheld because the Act recited Art 149(1).
  • Lee Mau Seng (Singapore) & Abdul Ghani Haroon: unless access to counsel is explicitly curtailed, Art 5(3) continues to apply.

Interaction with Article 151

Any preventive-detention statute under Art 149 must respect the procedural guarantees of Art 151 (grounds of detention, representation, Advisory Board review).

Principal Art 149 Statutes

• Internal Security Act 1960 (ISA) – repealed 2012
• Security Offences (Special Measures) Act 2012 (SOSMA) – initially for 5 years, extendable
• Prevention of Crime Act 1959 (POCA) – upgraded from ordinary to special statute
• Prevention of Terrorism Act 2015 (POTA)
• Dangerous Drugs (Special Preventive Measures) Act 1985
• Anti-Money Laundering & Anti-Terrorism Financing Act (certain provisions)

Case-Law on Procedural Compliance

• Mohamed Ezam Mohd Noor – detention invalidated for failure to supply grounds, denial of counsel.
• Tee Yam @ Kee Tee Yam – grounds may be conveyed by letter signed by Ministry Secretary; absence of Minister’s signature not fatal.
• Abdul Ghani Haroon (No 3) – right to lawyer under Art 5(3) survives ISA because statute is silent on denial.

Article 150 – Emergency Powers

Concept of “Emergency”

No constitutional definition. Judicial & Reid Commission formulations describe it as “a state of matters calling for drastic action,” including threats to security, economic life, public order, war, riot, epidemic, natural disaster. (Bhagath Singh v King-Emperor.) Malaysian examples: $1964$ Confrontation, $1966$ Sarawak crisis, $1969$ May 13 riots, $1977$ Kelantan.

Who Proclaims?

• Yang di-Pertuan Agong (YDPA) under Art 150(1), acting on Cabinet advice (Abdul Ghani bin Ali Ahmad).
• Multiple proclamations for different areas or nationwide are permitted (Art 150(2A)).

Justiciability

• Pre-1981: Courts tended to regard the matter as non-justiciable (Stephen Kalong Ningkan).
• Post-1981: Art 150(8) declares the YDPA’s satisfaction “final and conclusive” and bars judicial review of:
  • Proclamation
  • Ordinances
  • Continuance of emergency laws
    – confirmed in Dato’ Seri Anwar Ibrahim v PP.

Duration & Termination

• A proclamation continues indefinitely until:
  • Revoked by the YDPA, or
  • Annulled by both Houses (Art 150(3)).
• Courts cannot declare that the emergency has lapsed by effluxion of time (Johnson Tan Han Seng – Federal Court overturned High Court).
• After the emergency ends, all emergency laws lapse after $6$ months (Art 150(7)).

Legislative & Executive Powers During Emergency

1. Parliament (Art 150(5)) may make laws overriding any constitutional provision except Art 150(6A) & 151.
2. YDPA (Art 150(2B)) may promulgate Ordinances if:
   \begin{cases}
   \text{(i) A proclamation is in force}\
   \text{(ii) Both Houses are not sitting concurrently}
   \end{cases}
   The moment Parliament reconvenes, the King’s ordinance-making power ceases (Teh Cheng Poh v PP).
3. Executive may issue directives to the States (Art 150(4)).

Constitutional Limits (Art 150(6A))

Emergency legislation cannot touch: Islamic law, Malay custom, native law/custom of Sabah & Sarawak, religion, citizenship, language.

Procedure

• Proclamation and every Ordinance must be laid before both Houses.
• They remain unless annulled by resolution of both Houses.

Comparison: Articles 149 vs 150

Article 151 – Minimum Safeguards for Preventive Detention

Essence

Provides procedural guarantees supplementing Part II rights for anyone detained under Art 149 or 150 laws.

Key Rights

1. Prompt information: Detainee must be told grounds “as soon as may be” and supplied a written statement of “grounds of detention” + “allegations of fact.” Certain facts may be withheld if disclosure prejudices security (Art 151(3)).
2. Representation: Detainee may make representations to an Advisory Board within $3$ months (Art 151(1)(b)).
3. Advisory Board hearing: Board must make recommendations to YDPA “as soon as may be”; the decision is binding on the executive only if provided by the statute.

Limitations

Rights arise only after issuance of a Ministerial Detention Order (not during initial police custody).

Judicial Enforcement

• Chee Hong Yee – failure to afford statutory right of appeal to Minister rendered detention illegal.
• Sivanesan a/l Balakrishnan – lack of proper translation at Advisory Board violated Arts 151 and 5(3).
• Tan Boon Liat – Advisory Board’s >3-month delay made continued detention unlawful; habeas corpus granted.
• Ahmad Yani – Art 151(3) is a broad safeguard; ordinary meaning covers all detention orders.
• Nik Adli bin Abdul Aziz – ISA incorporates Arts 151 safeguards in ${11,12,16}$.

Grounds for Habeas Corpus

1. Substantive – non-existence or irrelevance of grounds.
2. Procedural – non-compliance with statutory or constitutional safeguards (e.g. failure to serve grounds, Board delay, denial of counsel).

Landscape of Malaysian Preventive-Detention Statutes

Practical & Philosophical Concerns

• Balance of security vs liberty – Constitutional design attempts to permit vigorous executive action while narrowing the rights curtailed (Art 149) or time-bounding extraordinary laws (Art 150).
• Political accountability – Where judicial review is barred (Art 150(8)), the ballot box remains the recourse, as noted in Anwar Ibrahim case.
• Marginal efficacy of Advisory Boards – Largely advisory, without power of release; criticism persists that safeguards are “mere window-dressing.”
• Requirement of explicit statutory language – Courts insist on clear words before rights like counsel are withdrawn; ambiguity is resolved in favour of liberty.

Revision Quick-Check

• Art 149: only $5,9,10,13$ can be overridden; law must contain recital; no emergency needed; no automatic sunset.
• Art 150: emergency declaration by YDPA on advice; non-justiciable (Art 150(8)); Ordinances when Houses not sitting; lapse $6$ months post-emergency.
• Art 151: grounds + representation + Advisory Board within $3$ months; enforceable via habeas corpus.