III. Overview of the Emergency Ordinance
The Emergency Ordinance was enacted as a temporary measure to control the spread of violence after the May 13, 1969 racial riots. Following the loss of the ruling party United Malay National Organizations parliamentary majority, riots erupted in Kuala Lumpur between ethnic Chinese and Malays culminating in the deaths of over 190 persons. A state of emergency was declared, the Parliament and Constitution were suspended, and the Emergency Ordinance was enacted on May 16, 1969.
Thirty-seven years later the government has not yet revoked Malaysias emergency proclamations.
An NGO activist has explained the distinction between the use of the ISA5 and the EO as follows:
The Emergency Ordinance is used to arbitrarily detain or restrict the movement of suspected gang members and criminals who the police find difficult to bring to justice due to lack of evidence. Instead of arresting suspects and charging them for offenses under Malaysian criminal law, the police simply lock up hundreds of persons for two years or more under the Emergency Ordinance. According to the Ministry of Internal Security in May 2005, the last time the government made EO detention figures public, there were 712 EO detainees in Simpang Renggam.7
The broadly worded provisions of the Emergency Ordinance allow the police to arrest and detain people up to sixty days if a police officer suspects that a person has acted or is about to act in a manner prejudicial to public order, or if he has reason to believe that a person should be detained if necessary for the suppression of violence or for the prevention of crimes.8 The arresting police officer has to report the circumstances of the arrest to the Inspector General of Police or his designated officer.9 The police are not required to obtain a detention order from a magistrate, and thus, the appropriateness of detention is not reviewed by a judge.
Upon expiration of the sixty days, the minister of internal security may order a suspect to be detained for two years, renewable indefinitely if satisfied with a view to preventing any person from acting in any manner prejudicial to public order . . . or that it is necessary for the suppression of violence or the prevention of crimes involving violence.10 The detainees are transferred from police custody to a detention camp for the duration of the order.
Alternatively, the minister may issue a restricted residence order to control the suspects freedom of movement and place of employment and residence for two years.11 The suspect has to report to the police on a weekly basis and is typically required to remain indoors from 8 p.m. to 6 a.m.
The law allows the internal security minister to order detention without trial for two years if he is satisfied that the detention is necessary to maintain public order and prevent crimes of violence. Thus, the executive branch may keep someone in detention for two years based on a subjective view of a persons alleged involvement in a crime without a process whereby evidence of the necessity is presented to a court of law.
The EO does allow detainees the opportunity to challenge the decision to detain them before an executive-appointed Advisory Board within three months from the date an EO detainee is served a copy of the detention order.12 Although it is empowered to review orders of the internal security minister, the Advisory Board makes non-binding recommendations to the government about which detainees should be released.13 According to a lawyer who has appeared before the Advisory Board on behalf of clients detained under the Emergency Ordinance, the Advisory Board recommends release in only 2 percent of cases.14 Moreover, review by the Advisory Board is ad hoc and not scheduled periodically. After an initial review of a detention order, the Advisory Board need only review such orders from time to time.15
Judicial review of EO orders is circumscribed. A 1989 amendment eliminated judicial review of the merits of EO detentions and section 7(C) of the law now specifically prohibits a court from reviewing such challenges:
As the language above suggests, the law still allows for judicial review of procedural requirements of the detention order,17 but this protection has proven all but illusory to most EO detainees.
Emergency Ordinance detainees who have successfully challenged their detention on procedural grounds are often re-arrested after a judicial order declares their detention invalid and orders their release. A lawyer whose clients have been successful in having their EO detention orders invalidated but then were re-arrested explained that courts typically declare EO orders invalid because the detainee was not informed of the grounds for his arrest, no police officer appeared in court to explain the necessity of continued detention, or the detainees lawyer was not advised of the date for the Advisory Board hearing and the detainee was not represented by counsel during the hearing.18
In addition to the statutory limitations on judicial review, after many years of attack by the government on their independence, higher courts in Malaysia are now generally deferential to the governments sweeping powers under the Emergency Ordinance.19 In one case an EO detainee argued that the government had not considered whether he should be charged and prosecuted instead of being detained under the EO. The Federal Court in June 2005 held that there is no obligation for the government to bring criminal actions after a detention order is imposed against a suspect, reasoning that the law specifically authorizes the minister to detain persons who are a threat to public order, whereas it entrusts the attorney general with prosecutions.20 The court explained that should the minister have referred the case for criminal prosecution, it would not be surprising to hear arguments that the minister has exceeded his jurisdiction or that he has taken into consideration matters which he should not have.21
A Permanent State of Emergency in Violation of International Law
The preamble to the Emergency Ordinance states: By reason of the existence of a grave emergency threatening the security of Malaysia, a Proclamation of Emergency has been issued by the Yang di-Pertuan Agong [the Malaysian King] under Article 150 of the Constitution.22 The law has been in effect for thirty-seven years and the government has not yet revoked Malaysias emergency proclamations.
Preventive detention laws are commonly justified in times of emergencies. International human rights law makes provisions for circumstances in which the right to liberty can be temporarily abrogated. Such derogation, however, must be of exceptional character where the life of a nation is threatened, strictly limited in time, subject to regular review, and consistent with other obligations under international law. (Derogation is the technical term given to limitation of rights under emergencies). The International Covenant on Civil and Political Rights (ICCPR), which has been ratified or acceded to by 156 states as of August 2006, includes guarantees such as the obligation to treat detainees with humanity, and certain elements of the right to fair trial, such as the prohibition on arbitrary detention of liberty and the presumption of innocence.23 Although Malaysia is not a signatory to the treaty, these provisions are considered customary international law and, as such, applicable in all states. Malaysian government-appointed bodies such as the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police24 have cited the ICCPR in setting forth the standards they believe should govern the conduct of Malaysian authorities.25
The ICCPR recognizes that in certain circumstances, temporary restrictions and limitations of these rights may be justified. Article 4 of the ICCPR allows states to derogate from some of the standards in times of pubic emergency which threatens the life of the nation and the existence of which is officially proclaimed.26 But such measures must be necessary and strictly required by the exigencies of the situation.27 Furthermore, any derogation must not be inconsistent with other obligations under international law, especially articles 55 and 56 of the United Nations Charter, which recognize the promotion and protection of human rights as a key aim of the United Nations. Malaysia is a member of the United Nations.
The ICCPR specifically prohibits states from derogating, even in times of emergency, from the right to life (art. 6), freedom from torture, cruel, inhuman or degrading treatment or punishment (art. 7), and the prohibition of retroactive criminal legislation (art. 15).28 Other non-derogable rights include the right of detainees to be treated humanely, certain elements of fair trial such as prohibition on arbitrary deprivation of liberty, and the presumption of innocence. These rights are not only based in treaty law, but based on customary rules of international law (a rule accepted as binding on all states) or peremptory rules of international law (general principles of law) and, therefore, binding on Malaysia.
In 2001, the United Nations Human Rights Committee, the authoritative body of independent experts which interprets the ICCPR and monitors state compliance with the treaty, held that:
On the issue of detention the Committee further noted that although article 10 of the ICCPR, which obligates states to treat persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person, is not specified as non-derogable, it nevertheless is not subject to derogation on the basis that article 10:
The Emergency Ordinance violates international law in many ways. It violates the fundamental right to liberty, right to due process, and a fair trial. Even in states of emergency, human rights standards still prohibit indefinite detention without charge or trial.
Malaysian government advisory groups are also recommending the repeal of the Emergency Ordinance. The government-appointed Royal Commission in 2005 recommended the repeal of the Emergency Ordinance. It expressed concern about preventive detention laws, calling them:
 Since 1960 the Internal Security Act has been used by the Malaysian government to silence critics and political opponents of the ruling United Malay National Organization. More than ten thousand people have been detained under the ISA, including former Deputy Prime Minister Anwar Ibrahim. The ISA allows the police to detain any person for up to sixty days, without warrant or trial and without access to legal counsel, on suspicion that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof. Internal Security Act 1960, section 72. After sixty days, the minister of internal security can extend the period of detention without trial for up to two years, without submitting any evidence for review by the courts. Currently more than 100 persons are detained under the ISA.
 Human Rights Watch interview with S. Arutchelvan, Suaram, Kuala Lumpur, July 4, 2005.
 In July 2005 the Ministry of Internal Security provided this figure to the Parliamentary Caucus on Human Rights following the Caucus visit to Simpang Renggam in June 2005. Email from Suaram to Human Rights Watch, June 10, 2006.
 Emergency (Public Order and Prevention of Crime) Ordinance (1969), sections 3(2) and (3).
 Ibid., section 3(3).
 Ibid., section 4(1).
 Ibid., section 4A(1).
 Ibid., section 5.
 Ibid., section 6.
 Human Rights Watch telephone interview with lawyer (name withheld), June 6, 2006.
 Emergency Ordinance, section 7 (compare to section 13 of the Internal Security Act, which mandates the Advisory Board to review a detention order every six months).
 Ibid., section 7C.
 Ibid., section 4C. The law makes the following procedural defects ineligible for review:
(a) the person to whom it relates
(i) was immediately after the making of the detention order detained in any place other than a place of detention directed by the Minister under section 4(2)....;
(ii) continued to be detained immediately after the making of the detention order in the place in which he was detained under section 3 before his removal to the place of detention, notwithstanding that the maximum period of such detention under section 3(3) had expired; or
(iii) was during the duration of the detention order on journey in police custody or any other custody to the place of detention;
(b) that the detention order was served on him at any place other than the place of detention, or that there was any defect relating to its service upon him.
 Human Rights Watch telephone interview with lawyer (name withheld), June 6, 2006.
 The judiciary was subjected to a long campaign of intimidation and interference by former Prime Minister Mahathir Mohamed. In October 1987 Mahathir ordered the arrest of 106 people, including human rights activists and politicians from the Democratic Action Party, Parti Islam Se Malaysia, and UMNO. These arrests took place under the operational codename lalang, a type of weed. Malaysias courts initially expressed a willingness to review the legality of his actions, as well as allegations of corruption against Mahathir. But Mahathir responded by removing five high court judges, including then-Chief Justice Tun Salleh Abbas, and introduced amendments to the Internal Security Act and the Emergency Ordinance prohibiting judicial review of ISA and EO detentions, including those brought as habeas corpus petitions. For further details on the independence of the judiciary see International Bar Association, Justice in Jeopardy: Malaysia in 2000: Report of a Mission 17-27 April 1999(2000).
 Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & 2 Ors, 4 AMR 725, 740 (2005).
 Ibid., p. 741.
 Emergency Ordinance, preamble.
 International Covenant of Civil and Political Rights, December 6, 1966, 999 U.N.T.S. 171, arts. 9. 10, 14; see also U.N. Human Rights Committee, General Comment on Article 4 of the ICCPR, U.N. Doc. CCPR/C/21/Rev/1/add/11 (July 24, 2001), para. 11.
 In December 2003, Prime Minister Badawi announced the establishment of a Royal Commission to study and recommend measures to develop the Royal Malaysia Police into a credible force to maintain law and order, to increase public confidence in the police, and to strengthen accountability of police personnel. The terms of reference for the commission were to inquire: into the role and responsibilities of the Royal Malaysia Police in enforcing the laws of the country; into the work ethics and operating procedures of the police force; into issues of human rights, including issues involving women, in connection with the work of the police; into the organizational structure and distribution of human resources; human resource development, including training and development; and to make recommendations to improve and modernize the Royal Malaysia Police. Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (Royal Commission Report), ch. 1, pp. 3-5.
 Ibid., ch. 4, para. 5.3.4.
 ICCPR, art. 4(1).
 U.N. Human Rights Committee, General Comment No. 29 States of Emergency (Article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11, August 31, 2001, para. 6 (General Comment No. 29).
 Ibid., art. 4(2). The ICCPR also prohibits derogation from the right not to held in slavery, right not to be imprisoned for the inability to fulfill a contractual obligation, right to recognition as a person before the law, and the right to freedom of thought, conscience, and religion (arts. 8, 11, 16, 18 respectively).
 General Comment No. 29, para. 16.
 Ibid., para. 13.
 Royal Commission Report, ch. 10, para. 1.4(1).