original Article 149 ( 2 ) provided that a law containing such a recital would automat-
ically lapse on the expiration of one year from the date on which the law came into
operation. A constitutional amendment in 1960 removed this safeguard: such a law
continues to operate unless and until both houses of parliament have passed
resolutions annulling such a law. Furthermore, prior to 1960 , if a person was
detained under a law made under Article 149 , that person could not be detained
longer than three months ‘unless an advisory board...has considered any repre-
sentations made by him...and has reported, before the expiration of that period,
that there is in its opinion sufficient cause for the detention’. This means that a
detaineemustbe freed if the board decided that there was not sufficient cause for
the further detention of the citizen. This safeguard has been eroded: under the
current Article 151 ( 1 )(b), no citizen shall be detained ‘unless an advisory board...
has considered any representations made by him...and made recommendations
thereon to the [king] within three months of receiving such representations, or
within such longer period as the [king] may allow’. There is no requirement for the
detainee to be freed even if the recommendation is to that effect. Moreover,
the period for the advisory board to make a recommendation can be extended.
It is difficult to comprehend why the board would need more than three months to
make a decision, especially when fundamental liberties are at stake.
There have been detainees who had been detained for lengthy periods. On a
number of occasions the blatant abuse of this power of preventive detention has been
justified on grounds of ‘national security’. Dr Mahathir, when he was a government
backbencher, admitted in 1966 that the ISA ‘is in fact a negation of all the principles of
democracy’. It is hard to see the justification for the use of this power in 1998 to detain
former deputy prime minister Anwar Ibrahim. It was a wild stretch of imagination to
envisage a threat to national security posed by the former deputy prime minister and
also the then finance minister. The reason for his incarceration was that he had the
temerity to exhibit prime-ministerial ambitions and challenge then prime minister
Dr Mahathir Mohamad. It is also hard to see the justification for the use of this
power to detain a number of leading figures, albeit subsequently released, in
the recent public Bersih 2. 0 rally calling for fair and clean elections.
The announcement by the Malaysian government of its intention to repeal the ISA
and review a number of other draconian laws underlines the deep concerns within
the ruling BN that the government may continue to lose electoral support in the wake
of the transformation of Malaysian society since the general election of 2008 ,when
BN retained the reins of government but lost its two-thirds majority. For the first time
in Malaysian history there exists a viable opposition which is perceived by the people
to be capable of assuming the reins of government and which currently is subjecting
the government to pressures of accountability regarding allegations of corruption and
incompetence. The key aspect of that transformation is that Malaysian civil society
has overcome its fear of governmental retribution against those who oppose or express
disagreement with the government.