33 Government of India Act, 1935, 26 Geo. 5 & Edw. 8, c. 2 (2-8-1935).
3^ Government of India Act, 1935, Seventh Schedule, List I, Entry 1 and List II, Entry 1, read with Part V.
detention laws. The Provincial Legislatures were empowered to make provision for preventive detention only in respect to the maintenance of public
- 2 C
order, while the Federal Legislature was specifically granted the power solely in relation to reasons of State connected with defence or external affairs.^
Subsequent to the Proclamation of Emergency by the Governor-General of colonial India in 1939, the Federal Legislature of India, acting under Section 102 of the Government of India Act, enacted the Defence o f India A ct, 1939.^ Under the Defence o f India Act, the Central Government of British India could make "Rules" for the purposes of:
securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community.*^
Rule 26(1) of the Defence o f India Rules made under the Defence o f India Act provided that:
The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to ... it is necessary so to do, may make an order ... (b) directing that he be detained...
Rule 129(1) empowered any police officer or any other central or provincial government officer to arrest without warrant. The Rule was to the following effect:
35
Ibid., Seventh Schedule, List II, Entry 1: "preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention."
° Ibid., Seventh Schedule, List II, Entry 1: "preventive detention in British India for reasons of State connected with defence, external affairs, or the discharge of the functions of the Crown in its relations with Indian States."
^ Act No. 35 of 1939. The Act is reproduced in [1939] A.I.R. (Acts Section), 125-132. ^ Section 2(1), Defence o f India Act, 1939.
^ The Rule is quoted in Keshav Talpade v Emperor, [1943] A.I.R. (F.C.) 1, at 2. For the full text of the Defence of India Rules 1939, see Gazette of India Extraordinary, September 3, 1939.
Any police officer or any other officer of government empowered in this behalf ... may arrest without warrant any person whom he reasonably suspects of having acted, of acting, or of being about to act, - (a) ... in a manner prejudicial to the public safety or to the efficient prosecution of war ...
Comparing the power of detention accorded by Rule 26 made under the Defence o f India Act, 1939, and Regulation 18B made under the British Emergency Powers (Defence) Act, 1939, Gwyer C.J. of the Indian Federal Court made the following observations.
There is in the Indian Act no trace of an intention that any particular person or authority should exercise the power of detention. ... [T]he wholly different problems of Government ... [in colonial India] made it a more difficult task to select in advance an individual or individuals in whom these powers might be vested, as was done in the United Kingdom ... It is one thing to confer a power to make a regulation empowering the Home Secretary [in the U.K.] to detain any person if he thinks it expedient to do so for a number of specified reasons; it is another thing altogether to confer a similar power on any person whom the Central Government [of India] may by rule choose to select, or to whom the Central Government may by rule give powers for the purpose.^
In Emperor v Sibnath B a n erje e^ it was held that the Court was not competent to investigate the sufficiency of the materials or the reasonableness of the grounds of satisfaction of the Government for detaining a person under Rule 26(1) of the Defence o f India Rules.^ In the appeal to the Privy Council in the same c a se ,^ it was held that:
the orders of detention ... must be taken as ex facie regular and p ro p e r...
40
See Keshav Talpade, op. cit., at 3. 41 Ibid, at 6-7.
42 [1943] A.I.R. (F.C.) 75. 42 Ibid., at 84.
44 Emperor v Sibnath Banerjee, [1945] A.I.R. (P.C.) 156. 45Ibid.,
Rule 26(1) of the Defence o f India Rules permitted the exercise of powers of preventive detention, if the Government was satisfied with regard to a number of matters. Interpreting this power the Privy Council, in Emperor v Vimlabai D esh p a n d e^ agreed that for a detention under this Rule to be valid, the Government must be satisfied and that mere suspicion was not enough^. But at the same time the Privy Council noted that:
ithere is no qualifying adverb such as reasonably or honestly attached to the word satisfied
This obiter remark of the Privy Council suggests that the expression satisfied in Rule 26(1) of the Defence of India Rules "must receive a subjective interpretation and the discretion of the ... [Government] making the detention order could not be questioned in a court of law".49 i n connection with the Privy Council observation, it has been pointed out that:
the presence or absence of the adverbs reasonably and honestly in this context are of little importance, for the legislature assumes that powers of this kind will be reasonably and honestly used. The question is whether the legislature intended the exercise of such powers to be subject to judicial co n tro l.^
# * *
Preventive detention had been a potent and effective mechanism to contain political dissent in the colonial State. Far from doing away with the scheme of detention by executive process, the constitutional systems of the post-colonial states have expressly recognized and legitimized powers of preventive detention. Further, as in the colonial State, powers of detention without trial in independent Malaysia, Sri Lanka and Bangladesh are available both during states of emergency and in normal times.
[1946] A.I.R. (P.C.) 123. Ibid., at 126.
48Ibid.
v F.K.M A . Munim, Rights of the Citizen under the Constitution and Law, Dacca, Bangladesh Institute of law and International Affairs, 1975, at 126.
Preventive Detention since Independence
There are provisions enabling the exercise of preventive detention powers in the Constitutions of both Malaysia and Bangladesh. These Constitutions also contain a number of safeguards^ for the detainee, but these safeguards, which are repeated in the preventive detention statutes, are essentially procedural in nature and it is left to the legislatures to determine the substantive content of the exercise of these powers. The legislatures have responded to this by enacting enabling statutes which define the purpose of the power in broad categories such as "maintenance of public order", "security of the State", and such like. The Sri Lankan Constitution of 1978 has entrenched the pre-Independence Public Security Ordinance, 1947,^ which provides for powers of preventive detention.
A. Malaysia
Constitutional provisions on Preventive Detention
The Constitutional Commission-^ which drew up proposals for the Constitution of independent Malaya (Malaysia) recommended specific provisions with regard to preventive detention. The Emergency proclaimed in 1948 was still in force when the Constitutional Commission began work in 1957, and it was the understanding of the Commission that the Emergency would still be in force when the Constitution was adopted. These circumstances motivated the Commission to recommend the inclusion of powers of preventive detention in the Independence Constitution of M alaya.^
^ Some of the safeguards, discussed infra, include the communication to the detainee of the grounds of detention, opportunity of representation to an advisory committee, and periodic review of the length of detention.