Preventing Preventive Detention

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The Emergency Regulations Ordinance 1948 did serve its purpose and was subsequently repealed when the Emergency ended on 30^th July, 1960.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.

When the ISA was tabled in parliament, all indications and assurance were that it was a temporary measure and was enacted to fight the communist threat.

RH Hickling, the original draftsman of the ISA commented in “The First Five Years of the Federation of Malaya Constitution” (1962):

“… I must hope that the practice of imprisonment without trial, charge or conviction admitted by the Act 1960 will not be regarded as permanent feature of the legal and political landscape of Malaya or for that matter of Asia generally.”

Again in 1989, now Professor Hickling commented in the preface to Essays in Malaysian Law as follows:

“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. It was with some considerable surprise that I discovered in 1987 that the Supreme Court (Teresa Lim Chin Chin and Ors v. Inspector General of Police [1988] 1 MLJ 293 at 296) took the view that ‘from the wording of the provision(s) of the Act there is nothing to show that it restricted to communist activities”. It seems extraordinary that a court, faced with two interpretations of a law, should adopt the one more restrictive of freedom, and indifferent to the Constitution.”

The late Tun Abdul Razak Hussein, Deputy Prime Minister and Home Minister when tabling the ISA gave the assurance that it would be used with utmost care so as to avoid abuse. In his speech he stated that the security of the Federation was still very much in issue on the basis that there was still a need for the people “to be protected from communist subversion.”

The threat of communist terrorism had come and gone with the Bangkok Accord in 1989 but we still have the ISA very much alive and kicking till today.

ISA which was enacted as a temporary measure and for a particular purpose had become a permanent feature in our Malaysian life. Enacted as a necessary evil to fight terror, ISA has become terror in itself.

Datuk Dr Rais Yatim, as early as 1996, made the following observation in INSAF:

“That the ISA may be used freely to thwart political or other challenges on the pretext of ‘security’ hardly needs qualification or rebuttal as events in the country have in the past proven. The culture of fear that the ISA emanates, the disregard for a person’s right of hearing, not to mention the gross disregard for the dignity of the person and the very percepts of a just society – all add up to the question of whether the ISA ought to be tolerated as a legal instrument to correct society from the standpoint of national security.”

Cases of mental and physical torture, inhumane and degrading treatment of the ISA detainees are numerous and are well documented by the victims. These horror stories have become our own “Tales from the Gulag”.

With the cessation of the communist threat, Malaysians did not benefit from the dividends of peace by the timely revocation of the ISA. Instead, the ISA had morphed into an overbearing and all encompassing instrument of fear and suppression.

In 1989, ISA Detainee’s recourse to the courts of law was further curtailed when we dutifully followed our southern neighbor in ousting judicial review in matters concerning the minister’s power to detain any person under ISA.

With the amendment, detainees can only challenge the detention on procedural grounds. I have nothing against Singapore. We have many things that we can emulate them but must we obediently imitate them in a field that they have one of the worst track records?

The breadth and reach of ISA has been expended to include amongst others, counterfeiters and religious extremist. What’s more worrying is that the ISA is viewed by some as the catch all enactment. There had been proposals that the ISA be used against copyright infringers, share fraudsters and rice hoarders. A government backbencher once even suggested that the ISA should be used against ‘political traitors’ of the country.

With so little understanding of such a grave provision of the law, it is worrying, to say the least, to allow it to remain as a law in our statute books.

Not only does ISA injure the detainees by depriving them of the basic right to be heard but it injures the Nation as a whole at a deeper level. The very threat of ISA casts a net of fear on the populace and retards our aspiration for justice for all.

ISA might have been a necessary evil once but with the evil vanquished, where is the necessity of ISA now?

We have a vast array of legislation that provides adequate legal frame work to deal with threats against national security. However, the executive have repeatedly chosen the easy path of invoking the ISA that deprives a man his day in court and send chills of fear down the spine of its citizens.

The Prime Minister, YAB Dato Seri Abdullah Ahmad Badawi has the best window of opportunity to revoke ISA now. With the current political scenario and calls to repeal ISA coming from all quarters, Pak Lah has the political momentum to push for the repeal of ISA.

The Prime Minister, by repealing the ISA, will not only pave the way to set the heart and soul of our country free, but also will leave a legacy more enduring and meaningful then any monument one could ever build.

Please repeal the ISA now Mr. Prime Minister for I doubt others have the political will or courage to do it.

Murugesan Sinnandavar