Time to repeal the ISA

There is no justification for the continued use of this draconian law to detain politicians and activists engaged in legitimate dissent or even passport forgers.

The Star

DRACONIAN, inhumane and authoritarian. These are among the labels human rights champions have pinned on the Internal Security Act 1960 (ISA).

For its proponents though, the ISA is a necessary evil to keep the country safe.

Fresh debate: Najib’s announcement of the release of 13 ISA detainees recently has renewed calls for a review and eventual repeal of the draconian Act.

Arguments for and against it have been debated time and time again and the issue has resurfaced with Datuk Seri Najib Tun Razak’s pledge that the Government will conduct a comprehensive review of the ISA.

It is significant that he said this while announcing the release of 13 detainees in his maiden speech as Prime Minister.

The statement was welcomed by most, including political parties in the Barisan Nasional that are for the Act to be abolished or reviewed.

Detention without trial

Since its inception until 2005, 10,662 people have been arrested under the ISA. A total of 4,139 were issued with formal detention orders while 2,066 were served with restriction orders governing their activities and where they live.

Currently, there are 27 people still detained under the ISA.

The biggest argument against the ISA is the fact that it constitutes “detention without trial” which goes against the basic tenets of human rights.

Under the ISA, a person is detained without trial or being charged. This means the person is not given an opportunity to be heard in court but is kept behind bars although he has not been found guilty of any offence. A person may be held by the police for up to 60 days without trial for acts which allegedly threaten the security of the country.

After the 60 days, the Home Ministry may release a detainee on restrictive orders, or order further detention without trial for a term of two years.

If a two-year detention order is signed, the detainee is taken to the Kamunting Detention Centre to serve the term. The law allows for the Home Minister to renew the two-year detentions indefinitely.

Bar Council president Ragunath Kesavan says the act goes against the basic principle of “innocent until proven guilty”.

“It is unfair because the ministers come out and make all kinds of statements in public about the accused without any evidence being presented. The accused is not given a chance to rebut the allegations,” he says.

Section 8(1) of the ISA gives the Home Minister arbitrary power to detain anyone for a period up to two years “if the minister is satisfied” that the person is a threat to national security, public order etc.

“I have met many detainees in Kamunting and they are in the dark over the allegations. They have no right to defend themselves and there is an uncertainty of what’s going to happen.

“If you are guilty and handed a prison sentence, at least there is light at the end of the tunnel,” says Ragunath, adding that there have been cases of people being detained for up to even 15 years.

He says courts are reluctant to review any matters relating to “national security” and only willing to review the technical aspects of the detention.

“At the moment, it is very technical although they can actually go into substantive issues. It seems that the minister has unfettered powers to detain anyone. The investigations are purportedly carried out but it is not tested in an open court,” says Ragunath.

He says the courts are generally conservative in their approach although the High Court last year found Malaysia Today editor Raja Petra Kamaruddin’s two-year detention order under the ISA unlawful. Raja Petra was released after 56 days.

To curb the communist threat

Essentially, the ISA was enacted in 1960 to curb the so-called communist threat but it has been misused to detain students, activists, political dissidents, Opposition MPs, trade unionists, journalists and passport forgers among others.

Ragunath says its use evolved from communists to issues of race and religion after 1969 and to religious extremism after 9/11. He adds that many others were victimised under the guise of race and religion.

Even the author of the ISA, Reginald Hugh Hickling who had formulated the law to detain communist insurgents, did not foresee that the law could be arbitrarily used to detain suspects.

“I could not imagine then that the time would come when the power of detention, carefully and deliberately interlocked with Article 149 of the Constitution, would be used against political opponents, welfare workers and others dedicated to non-violent, peaceful activities,” he was quoted as saying 20 years ago.

One of the biggest spate of arrests happened during Operasi Lalang in 1987 when politicians, social activists and NGO leaders where detained.

Among them were then Opposition leader and DAP secretary-general Lim Kit Siang, then Aliran president Chandra Muzaffar, then DAP deputy chairman Karpal Singh, MCA vice-president and Perak chief Chan Kit Chee, PAS Youth chief Halim Arshat, then Umno MP for Pasir Mas, Ibrahim Ali, and Umno Youth education chairman Mohamed Fahmi Ibrahim.

“Primarily the reason was political in the guise of inciting racial hatred. The politicians were arrested and released.

“The fact that they are elected to the Parliament and State Assembly meant they could not have espoused racist sentiments. If not, they would have been rejected by the people,” says Ragunath.

The Bar Council chairman says the definition of national security as it stands, is too wide.

“If it is defined by the minister, then forgery, counterfeiting, being a politician and speaking against the Government seem to be a threat to national security,” he says.

Last September, Sin Chew Daily reporter Tan Hoon Cheng, Raja Petra and Seputeh MP Teresa Kok were detained for allegedly being a threat to security, peace and public order.

Tan was released within 18 hours, the shortest detention in history. Former Home Minister Datuk Seri Syed Hamid Albar said she was detained for her safety, a reason slammed as ridiculous, to say the least. Kok, meanwhile, was released within two weeks of her detention.

Ragunath points to these examples to justify the huge change in public perception over the ISA.

“There would not have been that kind of outcry 20 years ago. The use of the ISA can now backfire on politicians, the police and the ruling party. It can’t be used as a political tool anymore,” says Ragunath.

A survey by the Merdeka Center for Opinion Research showed that 70% of 3,600 Malaysians did not believe it is “necessary to detain people without trial to safeguard national security.’’

So, while people generally disagreed with the past few detentions, wasn’t the use of the ISA to combat communists also against the principles of human rights too?

“Yes. What we are saying is there is no situation to justify the use of ISA at all,” says Ragunath.

Social problems and abuse

Syed Ibrahim Syed Noh, chairman for the Abolish ISA Movement (GMI) says that people lose their normal lives after being detained.

“Families have been broken, with wives asking for divorce. Children have suffered from mental trauma and have had to receive psychiatric treatment,” he says.

Furthermore, he claims, detainees are also abused while in detention. He gives the example of ex-ISA detainee Abdul Malik Hussein who was awarded RM2.5mil in damages for being unlawfully arrested, detained and beaten up while in police custody in 1998.

Another detainee Sanjeev Kumar, who was said to have been a foreign intelligence agent was left paralysed waist down.

“They will say that it serves the country and helps alleviate security issues, but where is the proof?” asks Syed Ibrahim.

Shaari Sungib, assemblyman for Hulu Kelang says the ISA goes against the teachings of Islam. He presented his research to a few muftis.

“Only one of them defended the use of the ISA,” says Shaari who wrote eight books about the subject while he was in detention.

The former president of the Jemaah Islah Malaysia (JIM) was detained for 16 days and two years respectively in 1998 and 2001 for involvement in the Reformasi movement.

“I was said to be radical and anti-government,” says Shaari who adds that his case earned a lot of international coverage.

Datuk Zaid Ibrahim, the former de-facto Law Minister who resigned from the Cabinet over the detentions of Tan, Raja Petra and Kok says that it would be best to repeal the whole act instead of reviewing it.

“It is too complicated to review. It is a very old piece of legislation,” he says.

Zaid adds that if there was a need for a law for internal security (such as Britain’s Anti-Terrorist Act) a new legislation could be drafted.

“The new act, however, should be limited, clear, not ambiguous and could not be abused by anyone. As long as it is objective and the court has power to ascertain (the legality of the detention),” he says.

Ragunath is also for repealing the ISA as it would be difficult to amend or review.

“We would be happy to fall back on the Penal Code. We have the laws on terrorism,” he says.

Ragunath would also like the Emergency (Public Order and Crime Prevention) Ordinance (EO) to be repealed.

Similar to the ISA in nature, the Emergency Ordinance is usually used to detain suspected criminals indefinitely without being charged or put on trial, at the Simpang Renggam Behavioural Rehabilitation Centre. Detainees are often re-arrested upon court-ordered release.There are actually more people detained under this Act compared to the ISA.

“The ISA is given more prominence because politicians are involved. The EO involves more ordinary people, but it should also be repealed,” says Ragunath.

Slack investigations

There are also cases where people have been detained under the ISA for passport forgery and counterfeiting money – which are offences under the Penal Code.

“If it’s a serious problem, investigations should be carried out. Shutting them off doesn’t solve anything. The best option is to take them to court and subject them to criminal laws. There will be more public scrutiny of the issue and greater awareness of the problems faced,” says Ragunath.

If laws such as the Emergency Ordinance and the ISA are repealed, it doesn’t give the police a chance to slack in their investigations.

“If there is insufficient evidence or if the investigation is not thorough, police have an easy way out by sending them to Kamunting or Simpang Renggam.

“This only encourages slackness in police investigations. But if there is a duty to bring to court, prosecute and to convict the suspect, the burden is much higher on the police,” he says.

NEXT WEEK: Question-and-answer session with Suhakam chairman Tan Sri Abu Talib Othman who says the Internal Security Act has been abused for too long and hopes there will be a ‘meaningful review’ or a total repeal of the act.