ISA needs critical scrutiny

By Shad Saleem Faruqi (The Star)

UMNO Youth deserves to be congratulated for joining the widespread call to review the Internal Security Act. The Prime Minister and the Home Minister have shown willingness to listen but have indicated that abolition is not an option. Given this scenario, let us examine some of the provisions that deserve critical scrutiny.

Minister’s absolute discretion: Section 8(1) of the ISA provides that “if the Minister is satisfied” that a person is a threat to national security or public order, the Minister may order his detention. The Minister’s power is absolute and subjective. No prior procedural requirements or need to consult with anyone are required. Courts have no jurisdiction to review the detention order.

Non-disclosure of facts: Though the Minister is required to inform the detainee of the grounds for his detention and the allegation of facts on which the order is based, the law allows the Minister to withhold facts where disclosure would compromise public interest.

No appeal or review: A ministerial order of detention under Section 8 is not followed up by a charge, a trial or an appeal. Judicial review by way of administrative law remedies of habeas corpus, certiorari, mandamus and declaration is also ousted by sections 8B and 8C of the ISA save on procedural grounds.

Judicial attitudes towards these “ouster clauses” vary. Most judges hold that the Minister’s subjective decision as to who and what constitutes a threat to national security cannot be reviewed.

Matters of national security and public order are the preserve of the executive. The reasonableness of the Minister’s decision cannot be questioned in the courts: Nasharuddin Nasir (2004).

Fortunately, a few courageous members of the judiciary disagree. They hold that despite the ouster clauses, the door to judicial review is not totally sealed. In about five instances since 1960, the courts have intervened in favour of the detainee because bad faith was proven or the power was abused for collateral or ulterior purposes: Karpal Singh (1988), Nasharuddin Nasir (2002), Jamaluddin Othman (1989), Tan Sri Raja Khalid (1988) and Menteri v Mohd Zambri Mohd Ariffin (1990).

For violation of mandatory procedures, most judges are willing to grant a remedy. But some executive-minded judges treat procedural flaws as mere defects of form, not of substance and, therefore, excusable: Karam Singh (1969), Tee Yam @ Kee Tee Yam (2005) and Nik Adli Nik Abdul Aziz (2005).

Detention without investigation: Under section 73, a police officer is allowed to arrest and detain a person without a warrant pending enquiries for a period up to 60 days. The courts have admirably held that the subjective test for ministerial detentions under Section 8 is not applicable to police detentions under section 73. This means that police actions are amenable to judicial review: Mohd Ezam Mohd Noor (2002).

Unfortunately, there is no requirement that a Section 8 order by the Minister must be preceded by a Section 73 police arrest and investigation. The Minister can go straight to the detention order under Section 8 without the Section 73 police investigation.

No time limits: A two-year ministerial order of preventive detention can be renewed repeatedly for as long as the Minister wishes. There is no maximum limit to the duration for which a person can be deprived of his liberty by executive fiat.

Advisory Board: All preventive detainees are entitled to make representations to the Advisory Board. The Board consists of three persons appointed by the Yang di-Pertuan Agong. Only the Chairman of the Board is required to be legally qualified. The Minister can withhold evidence from the Board on the ground of national interest. The recommendations of the Board are not binding on the Minister.

Previously, the Board was required to make its recommendations to the King within three months of receiving representations. In Tan Boon Liat (1977) the Board exceeded the time limit and the courts invalidated the detention. The Government responded by amending the Constitution to increase the time limit to “such longer period as the Yang di-Pertuan Agong may allow”.

Recommendations: Preventive detention is a serious violation of the fundamental right to due process. If “state necessity” demands retention of this blighted piece of legislation, then some changes should be made to surround the powers of the executive with safeguards against abuse.

> Police powers under Section 73 to detain up to 60 days for purpose of investigation should be reduced to 30 days.

> The detainee’s right to legal representation; to visits by his family; and to judicial review should be explicitly written into the law.

> Prior police investigation under Section 73 should be a pre-requisite to the Minister’s power to detain under Section 8.

> The power of the Minister to detain up to two years “if (he) is satisfied” should be amended to read “if the Minister is reasonably satisfied”. The word “reasonable” would impart some objectivity and will open the door to judicial review if the order is capricious and unsupported by evidence.

> Sections 8B and 8C which oust judicial review should be repealed.

> The overall effect of the ISA is that the executive is allowed to play the role of accuser, investigator as well as adjudicator. This should cease. An independent review of the ministerial decision under Section 8 must be provided for.

> The Advisory Board should be “judicialised” and converted to a Special Security Court consisting of three serving or retired judges. The Special Security Court should be required to complete its review within 90 days of receiving representation.

> The detainee should have the right to be legally represented and to have access to incriminating evidence subject to the normal principle of “public interest privilege”. However, nothing should be withheld from the Special Security Court.

> As the Special Security Court will deal with matters of security, strict rules of evidence and procedure need not apply.

> The determination of the Special Security Court should be binding on the Government.

> Besides other safeguards like an independent review, there should be an upper limit to the number of years a person can be detained preventively. In the US, the thinking is that two years should be the absolute maximum after which either a person should be tried or set free.

> The reformed law on preventive detention should have a “sunset clause”. The law should be subject to five-year reviews by the two Houses and should cease to operate unless renewed by resolutions of both Houses.

Freedom and responsibility, liberty and security have an eternal clash. A fair balance between conflicting needs is desirable. The ISA is heavily tilted in favour of arbitrary powers. It must be revised and humanised to bring it closer to the ideal of due process without sacrificing the need for stability and harmony in our deeply divided society in which racial and religious tensions always simmer underneath the placid surface.

> Prof Datuk Dr Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.