29 September 2008
YAB Dato’ Seri Abdullah Badawi
Prime Minister of Malaysia
5th Floor, East Wing
Perdana Putra Building
Dear Mr Prime Minister,
In our proclamation of independence, our first prime minister gave voice to the lofty aspirations and dreams of the people of Malaya: that Malaya was founded on the principles of liberty and justice, and the promise that collectively we would always strive to improve the welfare and happiness of its people.
Many years have passed since that momentous occasion, and those aspirations and dreams remain true and are as relevant to us today as they were then. This was made possible by a strong grasp of fundamentals in the early period of this nation. The Federal Constitution and the laws made pursuant to it were well founded; they embodied the key elements of a democracy built on the Rule of Law. The Malaysian judiciary once commanded great respect from Malaysians and was hailed as a beacon for other nations. Our earlier prime ministers, Tunku Abdul Rahman, Tun Razak and Tun Hussein Onn were truly leaders of integrity, patriots in their own right, and most importantly, men of humility. They believed in and built this nation on the principles and values enunciated in our Constitution.
Even when they had to enact the Internal Security Act (ISA) in 1960, they were very cautious and apologetic about it. Tunku stated clearly that the Act was passed to deal with the communist threat. “My cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent”, was what the Tunku said. Our third prime minister Tun Hussein Onn reinforced this position by saying that the ISA was not intended to repress lawful political opposition and democratic activity on the part of the citizenry.
The events of the last three weeks have compelled me to review the way in which the ISA has been used. This exercise has sadly led me to the conclusion that the government has time and time again failed the people of this country in repeatedly reneging on that solemn promise made by Tunku Abdul Rahman. This has been made possible because the government and the law have mistakenly allowed the Minister of Home Affairs to detain anyone for whatever reason he thinks fit. This subjective discretion has been abused to further certain political interests.
History is the great teacher and speaks volumes in this regard. Even a cursory examination of the manner in which the ISA has been used almost from its inception would reveal the extent to which its intended purpose has been subjugated to the politics of the day.
Regrettably, Tunku Abdul Rahman himself reneged on his promise. In 1965, his administration detained Burhanuddin Helmi, the truly towering Malay intellectual, a nationalist who happened to be a PAS leader. He was kept in detention until his death in 1969. Helmi was a political opponent and could by no stretch of the imagination be considered to have been involved in the armed rebellion or communism that the ISA was designed to deal with. This detention was an aberration, a regrettable moment where politics was permitted to trump the rule of law. It unfortunately appears to have set a precedent, and many detentions of persons viewed as having been threatening to the incumbent administration followed through the years. Even our literary giant, the late Sasterawan Negara Tan Sri A Samad Ismail was subjected to the ISA in 1976. How could he have been a threat to national security?
I need not remind you of the terrible impact of the 1987 Operasi Lalang. Its spectre haunts the government as much as it does the peace-loving people of this nation, casting a gloom over all of us. There were and still are many unanswered questions about those dark hours when more than a hundred persons were detained for purportedly being threats to national security. Why they were detained has never been made clear to Malaysians. Similarly, no explanation has been forthcoming as to why they were never charged in court. Those detainees included amongst their numbers senior opposition members of parliament who are still active in Parliament today. The only thing that is certain about that period was that Umno was facing a leadership crisis. Isn’t it coincidental that the recent spate of ISA arrests has occurred when Umno is again having a leadership crisis?
In 2001, Keadilan reformasi activists were detained in an exercise that the Federal Court declared was in bad faith and unlawful. The continued detention of those that were not released earlier from the Kamunting detention facility was made possible only by the fact that the ISA had been questionably amended in 1988 to preclude judicial review of the minister’s order to detain. Malaysians were told that these detainees had been attempting to overthrow the government via militant means and violent demonstrations. Seven years have gone and yet no evidence in support of this assertion has been presented. Compounding the confusion even further, one of these so-called militants, Ezam Mohamad Noor, recently rejoined Umno to great fanfare, as a prized catch, it would seem.
At around the same time, members of PAS were also detained for purportedly being militant and allegedly having links to international terrorist networks. Those detained included Nik Adli, the son of Tuan Guru Nik Abdul Aziz Nik Mat, the Menteri Besar of Kelantan. Malaysians were made a promise by the government that evidence of the alleged terrorist activities and links of these detainees would be disclosed. To date no such evidence has been produced.
The same formula was used in late 2007 when the Hindraf five were detained. Malaysians were told once again that these individuals were involved in efforts to overthrow the government and had links with the militant Liberation Tiger of Tamil Eelam of Sri Lanka. To date no concrete evidence has been presented to support this assertion. It would seem therefore that the five were detained for their involvement in efforts that led to a mobilisation of Indian Malaysians to express, through peaceful means, their frustration against the way in which their community had been allowed to be marginalised. This cause has since been recognised as a legitimate one. The Hindraf demonstration is nothing extraordinary as such assemblies are universally recognised as being a legitimate means of expression.
In the same vein, the grounds advanced in support of the most recent detentions of Tan Hoon Cheng, Teresa Kok and Raja Petra Kamarudin leave much to be desired. The explanation that Tan Hoon Cheng was detained for her own safety was farcical. The suggestion that Teresa Kok had been inciting religious sentiments was unfounded as was evinced by her subsequent release.
As for Raja Petra Kamarudin, a prominent critic of the government, a perusal of his writings would show that he might have been insulting of the government and certain individuals within it. However, being critical and insulting could not in any way amount to a threat to national security. If his writings are viewed as being insulting of Islam, Muslims or the Holy Prophet (pbuh), he should instead be charged under the Penal Code and not under the ISA. In any event, he had already been charged for sedition and criminal defamation in respect of some of his statements. He had claimed trial, indicating as such his readiness and ability to defend himself. Justice would best be served by allowing him his day in court more so where, in the minds of the public, the government is in a position of conflict for having been the target of his strident criticism.
The instances cited above strongly suggest that the government is undemocratic. It is this perspective that has over the last 25-plus years led to the government seemingly detaining arbitrarily political opponents, civil society and consumer advocates, writers, businessmen, students and journalists whose crime, if it could be called that, was to have been critical of the government. How it is these individuals can be perceived as being threats to national security is beyond my comprehension. The self-evident reality is that legitimate dissent was and is quashed through the heavy-handed use of the ISA.
There are those who support and advocate this carte-blanche reading of the ISA. They will seek to persuade you that the interests of the country demand that such power be retained, that Malaysians owe their peace and stability to laws such as the ISA. This overlooks the simple truth that Malaysians of all races cherish peace. We lived together harmoniously for the last 400 years, not because of these laws but in spite of them.
I believe the people of this country are mature and intelligent enough to distinguish actions that constitute a “real” threat to the country from those that threaten political interests. Malaysians have come to know that the ISA is used against political opponents and, it would seem, when the leadership is under challenge either from within the ruling party or from external elements.
Malaysians today want to see a government that is committed to the court process to determine guilt or innocence even for alleged acts of incitement of racial or religious sentiment. They are less willing to believe, as they once did, that a single individual, namely the Minister of Home Affairs, knows best about matters of national security. They value freedom and the protection of civil liberties and this is true of people of other nations too.
Mr Prime Minister, the results of the last general election are clear indication that the people of Malaysia are demanding a reinstatement of the rule of law. I was appointed as your, albeit short-lived, minister in charge of legal affairs and judicial reform. In that capacity, I came to understand more keenly how many of us want reform, not for the sake of it, but for the extent to which our institutions have been undermined by events and the impact this has had on society.
With your blessing, I attempted to push for reform. High on my list of priorities was a reinstatement of the inherent right of judicial review that could be enabled through a reversion of the key constitutional provision to its form prior to the controversial amendment in 1988. I need not remind you that that constitutional amendment was prompted by the same series of events that led not only to Operasi Lalang but the sacking of the then Lord President and two supreme court justices. Chief amongst my concerns was the way in which the jurisdiction and the power of the courts to grant remedy against unconstitutional and arbitrary action of the executive had been removed by Parliament and the extent to which this had permitted an erosion of the civil liberties of Malaysians. It was this constitutional amendment that paved the way for the ouster provision in the ISA that virtually immunises the minister from judicial review, a provision which exemplifies the injustice the constitutional amendment of 1988 has lent itself.
I also sought to introduce means by which steps could be taken to assist the judiciary to regain the reputation for independence and competence it once had. Unfortunately, this was viewed as undesirable by some since an independent judiciary would mean that the executive would be less “influential”.
I attempted to do these things and more because of the realisation that Malaysia’s democratic traditions and the rule of law are under siege. Anyway, there is nothing wrong with giving everyone an independent judiciary and the opportunity to a fair trial. This is consistent with the universal norms of human rights as it is with the tenets of Islam, the religion of the Federation. Unchecked power to detain at the whim of one man is oppressiveness at its highest. Even in Israel, a nation that is perpetually at war, the power to detain is not vested in one man and detention orders require endorsement from a judge.
If there are national security considerations, then these can be approached without jettisoning the safeguards intended to protect individual citizens from being penalised wrongfully. In other jurisdictions involved in armed conflicts, trials are held in camera to allow for judicial scrutiny of evidence considered too sensitive for public disclosure so as to satisfy the ends of justice. If this can be done in these jurisdictions, why not here where the last armed struggle we saw, the very one that precipitated the need for the ISA, came to an end in the 1980s? Any doubts as to the continued relevance of the ISA in its present form should have been put to rest by the recommendation by the National Human Rights Commission (Suhakam) that the ISA be repealed and an anti-terror legislation suited to the times enacted in its place. Containing as it did a sunset clause in its original times, the ISA was never intended to be a permanent feature of the Malaysian legal landscape.
Through its continued use in the manner described above and in the face of public sentiment, it is only natural that the ISA has become in the mind of the people an instrument of oppression and the government is one that lends itself to oppressiveness. Its continued use does not bode well for a society that is struggling to find its place in the global arena. It does not bode well for the democracy that is so vital for us to develop sustainably.
Mr Prime Minister, I remember very clearly what you once said: that if one has the opportunity to do what is good and right for the country, then he must take on the task. I respect you deeply for that, and if I were confident that I would have been able to do some good for Malaysia, I would have remained on your team. Sir, you are still the prime minister and you still have the opportunity to leave your footprint in Malaysian history. I urge you to do so by repealing the ISA once and for all.
Let us attempt to fulfil that solemn promise made by our beloved first prime minister to the people of this country.
Datuk Zaid Ibrahim was the former Minister in the Prime Minister’s Department in charge of law. He resigned on 16 Sept 2008 in protest against the use of the ISA.