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V. No Judicial Review on the Grounds for Detention

It appears to offend the doctrine of separation of powers when the Executive is seen to be the judge of its own actions
—Former Chief Justice of Malaysia Tun Mohamed Dzaiddin Abdullah, September 30, 2004, referring to the absence of judicial review of detention orders.⁹²

Malaysia’s once-proud judiciary has been excluded from playing an effective role in ensuring that ISA detainees are treated according to Malaysian and international law.⁹³ 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 ISA prevents courts from reviewing the merits of ISA detentions, thus leaving detainees without any effective recourse to challenge their detention.⁹⁴ 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.

Courts routinely dismiss habeas corpus petitions challenging procedural deficiencies in ISA detentions. In February 2005, the Federal Court affirmed the dismissal of habeas corpus petitions brought by eight alleged JI members, which were previously dismissed by the High Court in 2004. In the proceedings before the High Court, the prosecution justified the detention on the grounds that the detainees participated in meetings and training exercises for a holy war. The court found that the minister of internal security in reviewing the affidavit evidence had “objectively” considered facts which compelled him to “conclude subjectively that, [the detainees’ acts] were ‘prejudicial to the security of Malaysia or any part thereof.’ It was those ‘prejudicial’ acts which the Minister sought ‘to prevent.’”⁹⁵ In effect, the court rubber-stamped the allegations presented by the government, presuming them to be correct without any evidence offered in court and without any opportunity for the detainees to demonstrate otherwise.

Similarly, on July 25, 2005, the Federal Court affirmed the High Court’s dismissal of the habeas corpus petitions of five ISA detainees, including Nik Adli, a Parti Islam Se Malaysia (PAS) member and son of senior PAS cleric Nik Aziz, finding no procedural inadequacies in the more than four-year detention of these detainees. The detainees argued that they were not served with a statement of the allegations under which the internal security minister extended their detention order for another two years, and that the minister did not consult the ISA Advisory Board when extending the detention order as required by the ISA.⁹⁶ A lower court dismissed their arguments, finding that service of the allegations is necessary only when a detention has been extended on wholly or partly different grounds than the original order of detention.⁹⁷ Since the allegations were the same for extending the detention order as the original order the minister need not serve detainees with another statement of allegation.⁹⁸ In effect, this reasoning would provide justification for a series of detention orders amounting to a life sentence, all based on the same original, untested, allegations that led to the original detention.

International human rights law requires that persons deprived of their liberty be allowed to challenge their detention before a court. The ICCPR mandates that “[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”⁹⁹

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: “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.”¹⁰⁰ 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.

Publicly, the Malaysian government maintains that ISA detainees are afforded due process. For instance, in the Malaysian government’s initial report to the United Nations Counter Terrorism Committee, the ISA is presented as one of the main legislative provisions satisfying the requirements of Security Council Resolution 1373.¹⁰¹ Resolution 1373 requires criminal, financial, and administrative measures aimed at individuals and entities considered supportive of or involved in terrorism. The government states that the ISA is “subject to the rule of law and the principles of natural justice, with the Legislative, Executive and Judicial branches of government acting as checks and balances. Further safeguards for due process are also enshrined in the Federal Constitution and incorporated into the relevant laws.”¹⁰² Contrary to this statement, ISA detainees have no right to contest the merits of their detention in court and the executive branch has unfettered discretion to detain and release persons for alleged security threats at its whim.