The inclusion of Article 149 in the Federal Constitution was made during the uprising of the 1948-armed insurgency by the Malayan Communist Party which remained during the Independence Day and ended in 1960. This has forced the government to proclaim the country’s first emergency. The Reid Commission Report explained the need to include such Article by taking into consideration the existing emergency. Thus, it is recommended during the drafting of the Federal Constitution to include special powers to prioritise the safety of our country, which becomes the reason why this Article is embedded though it opposed the fundamental liberty in Article 5 of the Federal Constitution.
Now, the consequence of the inclusion of Article 149 is that it allows certain legislation like the Prevention of Crime Act 1959 (POCA) to be validly enforced until today. The effect of this legislation is that it permits preventive detention of individuals without trial. Whoever detained under this legislation cannot afford for full and fair trial as guaranteed by Article 5 of the Federal Constitution. To invoke and justify such special power within Article 149, the specific matters set out in limbs 1(a) to (f) of the said article must be strictly fulfilled first. For example, a substantial body of persons is causing a substantial number of citizens to fear organized violence against their person or property.
So, what are the redress available if such detention is irregular / illegal / wrongful? The redress can be found under Article 5(2) of the Federal Constitution, which expressly confers a right of constitutional review (to review the legality of the detention) and a right of satisfaction on the High Court, that the Court must be convinced that the detention is lawful. Which means, notwithstanding the inconsistency of Article 149 with Article 5(1), the High Court is still given the constitutional right under Article 5(2) to inquire into a complaint by any person so preventively detained, and to release him unless it is satisfied that the detention is lawful and proportionate and not arbitrary.
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