How do PD laws bypass fundamental liberties under Article 149?

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Preventive Detention Laws Bypass Fundamental Liberties Through Article 149 of the Federal Constitution

Preventive detention (PD) laws in Malaysia bypass fundamental liberties by leveraging Article 149 of the Federal Constitution, which permits Parliament to enact legislation that contravenes certain constitutional freedoms under specified circumstances. These laws, including the Security Offences (Special Measures) Act 2012 (Sosma), Prevention of Terrorism Act 2015 (Pota), and Prevention of Crime Act 1959 (Poca), allow for detentions without trial and override rights such as personal liberty, freedom of movement, freedom of speech, assembly, association, and property rights.
Circumvention of Fundamental Liberties

Article 149 of the Federal Constitution provides a legal basis for Parliament to create laws that may contradict fundamental liberties. This provision is invoked when dealing with issues such as organised violence, disaffection against the King, or actions prejudicial to public order. Consequently, laws enacted under this article can override protections like personal liberty guaranteed under Article 5, freedom of movement under Article 9, and freedom of speech, assembly, and association under Article 10, as well as rights to property under Article 13.
Altered Procedural Frameworks

PD laws function primarily as procedural rather than substantive legislation, meaning they do not create new offences but modify the procedures for handling existing ones. Key differences from standard procedural laws include extended detention periods before court appearance, the absence of arrest warrants, and significantly restricted judicial review. For instance, Sosma allows detention up to 28 days, while Pota and Poca permit detention for up to 60 days, a substantial increase from the 24-hour limit under usual laws, which can be extended by court remand for a maximum of 14 days.
Erosion of Presumption of Innocence and Judicial Oversight

A critical departure from the rule of law is the detention of individuals under PD laws before they are produced before a court to contest their liability, contradicting the principle of presumption of innocence. Furthermore, arrest warrants are generally not required under these laws, and bail is typically unavailable, keeping individuals in police custody throughout investigations. This framework is compounded by ouster clauses within these PD laws, which largely prevent judicial review of detentions, except on procedural grounds. This severely curtails the fundamental liberty guaranteed under Article 5 of the Federal Constitution, as the detaining authority possesses broad discretion based on "suspicion," a term left undefined and thus open to potential abuse.

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How do PD laws bypass fundamental liberties under Article 149?

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