Preventive detention is a process of arrest and imprisonment of a person without a formal charge on the basis of the executive’s subjective assessment that the said person is a threat to security or public order.

Three major preventive detention laws in Malaysia are the Internal Security Act 1960 (ISA), the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DSPMA).

The most infamous of these is the ISA.

The ISA has its legal basis under Article 149 of the Federal Constitution which enables legislation against subversion and action prejudicial to public order. Article 149(1) further states that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any provisions of Articles 5, 9, 10 or 13 ( i.e. Articles that ‘entrenches’ Fundamental Liberties’).

The ISA has its historical origin in the Emergency Regulations Ordinance 1948. After World War II, the Malaysian Communist Party took to armed struggle and a state of emergency was declared by the then British High Commissioner to fight this insurgency.

Regulation 17 of Ordinance 1948 empowered the Chief Secretary of the Federation to direct the detention of any person named by way of an order for any period not exceeding one year.

The Emergency Regulations Ordinance 1948 did serve its purpose and was subsequently repealed when the Emergency ended on 30^th July, 1960. However, the power of detention without trial under Regulation 17 was transformed into Part II of the ISA.

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