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Episode 8: Article 149: Special Laws Against Subversion

UM Consti Team is back with the eighth episode of Law Series!


In this episode, we discuss about one of the highly controversial provisions in the Federal Constitution - Article 149.



INTRODUCTION


The term ‘subversion’ is capable of broad interpretation. According to the Merriam-Webster's Dictionary of Law, subversion is defined as ‘a planned attempt to overthrow or undermine the government’. To illustrate better, due reference can be made to the learned Emeritus Professor Shad Saleem Faruqi who listed “narcotic trafficking, secret society activities, local hooliganism, and mobilizing of voters to throw out the government in throne” as examples of subversion (2008, p. 659).


In Malaysia, the special power to enact anti-subversion laws is enshrined under Article 149 of our Federal Constitution. According to Article 149, subversion refers to any situation causing a substantial number of citizens to fear organized violence against them or their property; exciting disaffection against the Yang di-Pertuan Agong or any government in the Federation; promoting feelings of ill-will and hostility between different races or other classes of the population in such a way as is likely to cause violence; procuring the alteration, otherwise than by lawful means, of anything by law established; prejudicing the maintenance or the functioning of any supply or service to the public or any class of the public; and causing prejudice to public order or national security. Legislations enacted under Article 149 include the Internal Security Act 1960 (Repealed) (‘ISA’), the Security Offences (Special Measures) Act 2012 (‘SOSMA’), the Prevention of Crime Act 1959 (‘POCA’), and the National Security Council Act 2016 (‘NSCA’). In this article, the writers wish to enlighten the readers on the issue of law of subversion in Malaysia.


1.0 AMENDMENT HISTORY


The present Article 149 was amended throughparagraphs 28(a) and (b) of Act 10/1960, which is also known as the Constitutional (Amendment) Act 1960. The amending law was tabled in the Parliament and became the first Act which sought for the matter of constitutional amendment (Lee, 1976). It was passed and came into force on 31st May 1960. The legislators at that time have included a total of four paragraphs (paragraph (b) to (e)) into Clause (1) of the provision. Paragraph (f) was added much later in 1978 through Constitution (Amendment) Act 1978 or also referred to as Act A442. The five paragraphs, as seen in the Federal Constitution, have added more context to what our national laws would define the meaning of subversion itself.


At the same time, the amendment of Clause (2) also substituted the definite duration of such anti-subversion laws. The status-quo was that the anti-subversion laws must cease to have effect after the period of one year in operation, if not being repealed sooner by the Parliament. On the contrary, the amendment only stated that the anti-subversion laws in force only cease to have effect if resolutions are passed by both Houses of Parliament annulling such laws. In this matter, we see that anti-subversion legislations in Malaysia have become permanent law in this country. The executive government may continue to exercise its power through the security laws given that the laws are not being annulled by the federal legislative branch.


Several minor amendments that can be noted is the amendment made on paragraph (e) by the power of section 5 of Act A442 which came into force in 1978. The present paragraph used today substituted the original paragraph which simply read as "(e) which is prejudicial to the security of the Federation or any part thereof;".


Meanwhile, another amendment is on Article 149(1) where the words, “10 or 13" substituted for the words "or 10”. This amendment came into force three years after the Act A442 was tabled, which was in 1981.


2.0 PROCEDURE


In order to effectively enact a special law under Article 149, an Act of Parliament to prevent subversion must contain a recital. All that is required for the recital is “action has been taken or threatened by any substantial body of persons, whether within or outside the federation”, to cause apprehension of subversion. This has also been agreed upon by the learned Emeritus Professor Shad Saleem Faruqi where he stated, “with this magical incantation, a whole new legislative vista opens up to the federal legislature.” However, if such recital is not made, the court may rely on the Irish case of R (O’Brien) v Military Governor of North Dublin Union to hold that the absence of the condition precedent invalidates the law. Alternatively, the court may relegate the law to the status of an ordinary law that is not protected by the extraordinary powers of Article 149 (Shad Saleem Faruqi, 2019, p. 274). Furthermore, to pass a law under Article 149, it merely requires a simple majority of those present and voting in the two chambers of Parliament.Besides, the consent of the Conference of Rulers and the Governors of Sabah and Sarawak in passing these laws is unnecessary. In other words, the absence of special majorities is immaterial.


3.0 EFFECT


A law enacted under Article 149 has two cardinal effects. Firstly, trespass to fundamental liberties is explicitly allowed to combat subversion. However, it must be limited to the liberty of the person (Article 5), prohibition of banishment and freedom of movement (Article 9), freedom of speech, assembly and association (Article 10), and rights to property (Article 13) (Tay, 2019). This is illustrative in the case of Minister for Home Affairs v Jamaluddin bin Othman whereby the respondent was detained by the minister under Section 8(1) of the ISA for propagating Christianity among the Malays. During the appeal, the Supreme Court echoed a similar view with the trial judge and ruled that the detention was unlawful as Article 149 did not authorise the minister to deprive the right to freedom of religion under Article 11.


Secondly, Article 149 allows the Parliament to override the fetters imposed by the State List and Concurrent List (Tay, 2019). In simpler terms, this means the Parliament enjoys wider legislative power in enacting anti-subversion law by virtue of Article 149. Apart from that, Clause (2) expressly provides that the legislation under Article 149 shall continue to operate unless it is repealed or annulled by the law through a resolution by both houses of the Parliament. It is not even a requirement for the threat to continue for an anti-subversion law to be operative. The purpose of the law, according to the Privy Council in Teh Cheng Poh v Public Prosecutor, is to enable the Parliament to not only make laws for suppressing subversion but also to prevent its recurrence. The alternative ways for legislations under Article 149 to be inoperative are through automatic lapse at the end of the stipulated time frame or that the enactment itself requires periodic parliamentary review and confirmation (Shad Saleem Faruqi, 2008, p. 660 - 661).


4.0 JUDICIAL REVIEW OF ARTICLE 149


Like any other legislation, anti-subversion law is subject to judicial review by the court. Despite that, it is rather unfortunate that the courts have not invalidated any parliamentary legislation under Article 149 despite numerous pleadings (Tay, 2019). Nevertheless, the court in Teh Cheng Poh v Public Prosecutor seems to have implied that Article 149 legislations must be bona fide to stop or prevent subversive action of the kind referred to the recitals instead of achieving different ends. In regards to the court’s judgement, Prof Shad Saleem Faruqi (2008, p. 664) opined that there is no realistic chance of judicial review as the powers of the Parliament under Article 149 are so broad and subjective. On the other hand, the courts have invalidated many unlawful executive acts in pursuance of the subversion laws. The three grounds of challenge commonly revolve around (1) illegality; (2) irrationality; and (3) procedural impropriety.


Notably, the Court of Appeal in Public Prosecutor v Khairuddin Abu Hassan concluded that the offence of the respondents under Section 124L of the Penal Code is not a ‘security offence’ under SOSMA as such offence fell within the ambit of paragraph (e) of Article 149(1), but the recital of SOSMA only specified paragraphs (a), (b), (d) and (f). Another enlightening decision would be Abdul Ghani Haroon v Ketua Polis (No 3) with the court holding that the arrest and detention of the applicants were unlawful for violating their rights under Article 5(3) of the Federal Constitution, which is to be sufficiently informed of their ground of arrest and to gain access to their lawyers. This is due to the fact that the rights under Article 5 shall continue to apply unless explicitly exempted by the anti-subversion law but nothing in the ISA has indicated so, as seen in this case.


CONCLUSION


All in all, we can acknowledge that the crime of subversion has already been seen as a serious problem since the inception of pre-independent Malaya back in 1948 at the time where the Communist Party of Malaya became a setback for the nation’s progression of peace. For that happened in the Insurgency Era (1948-1960), Article 149 was amended and hence, gave broader power for the legislators in the Parliament to enact extraordinary laws against subversion. But today, times are different and there is lesser need for such a regime-based government. Like any other passed laws that are subject to judicial review, anti-subversion legislations are also no exception. Yet, the powers of Parliament in this matter are comprehensive and it is not easy to do so.


It is worth noting that Article 149 undermines the administration of justice in Malaysia. The express authorisation to trespass fundamental liberties of Malaysian citizens with indefinite timeline is said to have paved a leeway for the government to achieve their political agenda. Hence, we strongly urge for the revival of automatic time lapse for laws enacted in accordance with Article 149 to effectively safeguard the citizen’s fundamental rights and to prevent any abuse of power. Besides, it is also in our strong belief that it will help to build a government that is on par with the principles of constitutionalism and separation of powers.



REFERENCES


Legislations


Federal Constitution


Internal Security Act 1960 (Repealed)


National Security Council Act 2016


Security Offences (Special Measures) Act 201


Books


Shad Saleem Faruqi. (2008). Document of Destiny: The Constitution of the Federation of Malaysia. Star Publications (Malaysia) Berhad.


Shad Saleem Faruqi. (2019). Our Constitution. Sweet & Maxwell.


Cases


Abdul Ghani Haroon v Ketua Polis Negara & Another Application (No 3) [2001] 2 CLJ 709


Datuk Seri Anwar Ibrahim v. the Government of Malaysia & Anor [2020] 2 MLRA 1


Minister for Home Affairs, Malaysia & Anor v Jamaluddin bin Othman [1989] 1 MLJ 418


Public Prosecutor v Khairuddin Abu Hassan & Anor [2017] 4 CLJ 701


R (O’Brien) v Military Governor of North Dublin Union [1924] IR 32


Teh Cheng Poh v Public Prosecutor [1979] 2 MLJ 238


Journal Articles


Lee, H. P. (1976). Constitutional amendments in Malaysia part I: A quick prospectus. Malaya Law Review, 18(1), 59-124. Retrieved fromhttps://www.jstor.org/stable/24863148



Online Newspaper Articles


The Edge Malaysia. (2020, March 9). The Edge Court Judgements Report. The Edge Markets. Retrieved fromhttps://www.theedgemarkets.com/article/edge-court-judgments-report-5


Online Websites

FindLaw. (2020, March 9). Subversion. FindLaw Legal Dictionary. Retrieved fromhttps://dictionary.findlaw.com/definition/subversion.html

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