Nik Nazmi Nik Ahmad

2005

Our country is safe, stable and prosperous; in spite of us being a hodgepodge of race and religion. We have the Internal Security Act (ISA). So we are safe, because of the ISA. That seems to be the justification for the legislation, which allows detention without trial.

Well, the argument above is attractive for its simplicity, but things are a bit more complicated than that. Let’s compare that to a story: someone is caught whistling in the Grand Canyon. A friend asks: why are you doing that? Well, the whistler answers: this is to drive away the elephants. The friend retorts: but there are no elephants in the Grand Canyon. The whistler smugly replies: See how effective it is!

The moral of the simple story is, just because we have the ISA and that we have been blessed by God with a relative peaceful existence all this while, does not necessarily mean that the two are interrelated. We have the Petronas Twin Towers, and our country is safe – but no one would argue that the latter is influenced by our architectural wonders.

Let’s start by asking: what is the ISA? The ISA is a legislation which allows detention without trial. It was the legacy of a British measure enacted during the Emergency, to counter the Communist forces.

This became the ISA in 1960, the same year the Emergency officially ended, and has persisted since, outlasting the Communist surrender in the late 1980s. The ISA has continued and outlasted its original raison d’etre. Professor R H Hickling, someone who not only believes in the aptness of applying ISA to the Communists; but was actually the Parliamentary Draftsman who drew up the original Act in 1960 upon the instruction of Tun Razak – have reiterated that the act was meant to deal with the specific threat of Communists under the situations of that day alone. In the recently published Malaysian Public Law, he criticises the Malaysian courts in their interpretation of the act which allowed it to be extended to all sorts of activities, including legitimate political opposition:

“It is curious to find a court enlarging the provisions of the Act, the limits of the authority of which are so carefully crafted and specified in a special article of the Federal Constitution. After all, when a fact is open to two inferences, one in favour of liberty and the other not, it is usual to adopt the former, not the latter. The net result of that decision is that anyone can be detained under the Act if, in the subjective opinion of the Minister, he or she is a threat to public order.”

According to Section 73(1) of the ISA, the police may detain any person for up to sixty days, without warrant or trial and without access to legal counsel, on suspicion that “he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof”. Upon the end of the sixty day period, the Minister of Home Affairs can then extend the period of detention without trial for up to two years, without submitting any evidence for review by the courts, by issuing a detention order that is renewable indefinitely.

In other words, the ISA confers broad powers on the government to arrest anyone who is deemed to be a threat to national security. In the post-September 11 world, one might be tempted to say that such a power is justified in extreme situations of national emergency. Yet the broad powers that ISA gives to the executive provides much room for misuse and abuse, as history has proven, and which I will examine below.

A basic principle in any constitutional democracy is the separation of powers between the executive (the government), the judiciary and the legislature (the Parliament). Anyone committing a crime, under the Malaysian Federal Constitution, is to be arrested by the police, and then charged with a crime in a court of law. He or she has the right to legal counsel, and during the trial the judge will decide on the merits of the case, according to the law. If the prosecution has proven that the accused is guilty beyond reasonable doubt, then the accused will be duly sentenced.

The ISA however subverts this basic notion of constitutional law. It allows for the executive to bypass the judiciary and arrest anyone that it deems to be a threat to national security. The ISA has removed any legal safeguards that we have prescribed by our constitution!

This means, that in a hypothetical situation where the Minister of Home Affairs dislike his neighbour for frequently eating durians, he can in theory detain that person under the ISA if he believes that “the smell of durians can create chaos and dissension; and hence, threaten the stability of Malaysia”. That detention may go on forever as well, as the government can renew the two year period indefinitely. It may be an absurd example, but I am trying to illustrate on the powers that the government has through the ISA.

A legal scholar, in his thesis for his PhD, “Freedom Under Executive Power in Malaysia” remarked in page 290-291:

“It is common practice that the Minister of Home Affairs signs detention papers purely basing his findings on the briefs supplied by the police. There have been instances in the past when detention orders were signed by the Minister or his deputy just within hours before the expiration of the respective detention period. In its practical sense and in such a case, the Minister cannot be said to have used his subjective faculties to satisfy himself that the detention ought to have been made because he has not read the police reports in their entirety. It could therefore be said that when a man is sent to a detention camp the Minister is making a political decision about the rights and liberties of the subject solely upon the recommendation of the police.”

The legal scholar was also then a leader of the opposition Semangat 46 party. Later, the party was dissolved and he, Rais Yatim, rejoined UMNO, and became a cabinet minister, was in charge of law, and ironically, defended the ISA – something which he heavily criticised in his doctoral thesis.

These broad powers allow the ISA to be used as a tool for political survival; rather than national security. Let me cite two instances in our national history:

Operasi Lalang in 1987: The pretext for arrests made under this incident was the threat to national security due to racial tensions. There was a controversy that pitted the two Chinese BN parties – MCA and Gerakan, together with DAP; against UMNO. UMNO itself at that time was plagued by infighting whilst an economic crisis was looming. In this situation, the government launched a massive operation that saw the arrests of 107 people. What was remarkable was that among the politicians arrested (there were religious leaders, NGO activists and Chinese educationists as well), were the top echelons of the opposition parties DAP and PAS. Although the BN parties, notably UMNO, MCA and Gerakan contributed to the incident (while PAS was noticeably absent) only a few low-level leaders were arrested. None of those arrested were charged at court.

If it’s true that the ISA is vital to national security, why not arrest all of those who contributed to the tensions, and not just opposition leaders?

Reformasi Activists in 2001: Several Reformasi activists, including Keadilan politicians were arrested in 2001 including Keadilan Vice President, Tian Chua; Youth Leader, Ezam Mohd Noor; Youth excos, N. Gobalakrishnan, Lokmaan Adam and Ghani Haroon; Keadilan supreme council member and JIM founder, Saari Sungib; and Free Anwar Campaign Director Raja Petra Kamaruddin. They were accused of threatening to launch a militant insurrection during the anniversary of Datuk Seri Anwar Ibrahim’s arrest in April 2001. The detainees were accused to be in the process of obtaining Molotov cocktails, grenade launchers and other explosive materials.

However, in sworn affidavits submitted by their lawyers, the detainees revealed that no questions were asked regarding the Molotov cocktails and such; rather the questions were aimed at the financial strength of Keadilan, its organisation and leadership. Undoubtedly, questions on the obtaining of any weapons for an armed insurrection are crucial to national security. But inquiries into the organisational details of a legally registered political party have a less clear link with national security; compared to the political survival of the government.

Many members of the government have said many controversial and racially-divisive statements as well. One, recently, threatened to torch down the Chinese Assembly Hall. Another accused Chinese Malaysians as being unpatriotic for not waving the Jalur Gemilang during Merdeka. Both of these statements were made as recently as within five years ago, and both did not receive any threats of ISA. Of course they didn’t – as both were members of the ruling party and were not a threat to the political survival of the government.

Yet, hasn’t the ball game changed since September 11, and isn’t the ISA justified now with the adoption of similar legislation by its former fervent critics such as the US and the UK?

Certainly, there is a greater terrorist threat, and a greater concern for security among the general public since the tragedy of September 11. The doctoral candidate critic of the ISA-turned-minister and defender of the ISA, Rais Yatim, equated the ISA as similar to the detention of terror suspects at Guantanamo Bay, Cuba committed by the US government. The British government’s anti terrorism legislation also permits detention without trial.

Just by saying that the US and the UK are doing it as well, does not make it right. It’s an intellectually weak argument by a government that frequently condemns the West and envisages a better moralistic alternative. In fact, the US has now toned down their criticisms of Malaysia, and in fact President George W. Bush has frequently praised Malaysia as a “beacon of stability”.

So what is the alternative?

To complement our existing laws (which is already extensive, if we are considering preventing instability or terror; insufficient to prevent legitimate political opposition of course) we can have a new security act that provides for measures in times of emergency (such as terrorism or racial tension) and complements existing criminal laws, but it must meet the following conditions:

a) Open to judicial review (i.e. judge inquiring over the detention) like the original ISA (it has been removed following Operasi Lalang)
b) Provides for a shorter period of detention (for example 10-20 days) before being charged under an open court or released
c) A more specific accusation narrowed to threats of militant overthrow of government or terrorist guerrilla tactics
d) Expires after a certain date (five years?), where to enforce it, Parliament must go through the whole legislative process again

The principle of presumption of innocence and right to a fair and free trial are of an utmost importance to any democratic country, especially one that has developed remarkably economically and yearns to be a developed nation by 2020. The ISA makes a mockery of those principles, and promotes a culture of fear.

Just recently there was a big brouhaha regarding Jeff Ooi’s blog. A user using the name ‘Anwar’ left a comment that made some disgusting comparisons to the government’s ideal of Islam Hadhari – and received a warning from Jeff. However, a Malay mainstream newspaper, clearly substituting political vendetta for common sense or a semblance of intelligence, accused Jeff Ooi of insulting Islam and promoting racial hatred. The Deputy Internal Security Minister immediately threatened Jeff (not ‘Anwar’) with the ISA.

The undeserved controversy has wound down a bit, but the fact is, if the government wanted to arrest Jeff Ooi, ludicrous and baseless as such an action might be, they could have actually done so.

That illustrates the culture of fear that dominates us. This culture is so useful to the powers-that-be. To use a Star Wars example, it has managed to rule simply by fear of the force, rather than the force itself. A Christian colleague of mine revealed how many parents in her church were reluctant to allow their children to take part in social services for squatter houses for fear of the ISA. It’s a sad illustration on the fear that exists beneath our veneer of harmony and prosperity.

It is typical of authoritarian regimes to use accusations of causing discord and disunity as justification for draconian actions against political opposition. These regimes would arrest their opponents, some with shadowy show trials, and some under ISA-like legislation. Alija Izetbegovic, the Bosnian Muslim leader; Nelson Mandela; Mahatma Gandhi; and Vaclav Havel, the Czech writer and politician are amongst the many who were initially accused by their opponents of causing splits within society. Some were detained; but all of them were vindicated by history due to their contributions towards change, reform and freedom.

Too often, we are told, the plight of the few ‘troublemakers’ are nothing compared to the welfare of the many. If we think deeply, learn from the lessons of history in a critical manner – we will realise that the plight of the few were sacrificed, more often than not for the political survival of the fewer. Imagine the plight of a wife, who had her husband taken away, and then find ludicrous charges announced in the media, but when pressed for more, the authorities are mum and will not divulge anything.

“Your husband was a threat to national security.”

Fine, but where is the proof?

If the wife had been lucky, she might have been told that there was a reason to believe that the husband was about to get explosives, guns and Molotov cocktails. Otherwise, she would not have received any answer.

Regardless of the answer solicited, the fact is, there is no evidence, because if there was, the government would have charged him in open court.

Malaysians are generally a self-confident lot, who can tolerate responsible debate – it is time we rise above all the fear mongering that has ruled us for so long. PM Datuk Seri Abdullah Ahmad Badawi has pledged to build a more open, accountable and transparent society. To prove his seriousness in this pledge, he could begin by ending this culture of fear, by dispensing with the ISA.

Professor Wu Min Au in the 4th Professor Ahmad Ibrahim Memorial Lecture, organised by the International Islamic University Malaysia in 2003, said:

“I am a keen student of history and it tells me that if we allow fundamental freedom to be sacrificed for a prolonged period, even in the name of national security, we invariably come to regret it later. The first and perhaps the worse casualty is the precious liberty of citizens. Being asked to have blind faith in a government, although an elected one, is a difficult message for civil libertarians to accept. Trust must be backed up by the existence of an elaborate structure of checks and balances, which include the critical pressure exerted by an independent judiciary and the ultimate political power of an informed electorate. Without the structure, abuse will thrive. The existence of a sunset clause providing for the ending of the law is also an important safeguard.”

I rest my case.