PETALING JAYA, 17 April 2009: Even though the focus has been on the Internal Security Act (ISA), civil society groups and a think tank say there are two other laws that also allow the state to detain someone without trial.
Suaram coordinator Nalini Elumalai said the two other laws were the Emergency (Public Order and Prevention of Crime) Ordinance 1969, and the Dangerous Drugs (Special Preventive Measures) Act 1985.
“We call on the government to repeal these laws,” Nalini said in a phone interview with The Nut Graph.
“We don’t see why the Emergency Ordinances, for example, is still in place as Malaysia is no longer in a state of emergency,” Nalini said, adding that these laws should not have been passed in the first place.
Ng (Pic courtesy of Ng Yeen Seen)Sedar Institute deputy director-general Ng Yeen Seen agreed that all three laws that allow for detention without trial should be looked into. “But reviewing all three would take a long time,” Ng said in a phone interview.
“Therefore, we recommend that the Home Ministry push for a parliamentary select committee to be appointed, to look into all such laws.”
Ng said such a move would be a long-term effort. In the meantime, she said, the government should undertake a “total review” of the ISA.
Ng added that the Gerakan political think tank was against the use of the law for politically motivated detentions. Penang Gerakan chairperson Datuk Dr Teng Hock Nan had previously said the party was “strongly against the ISA, especially when it involves detention without trial.”
“The ISA should be replaced by an Anti-Terrorism Act,” Ng suggested, saying that this would be more in line with the spirit of the ISA, which was implemented to protect Malaysians against terrorists.
The Nut Graph was unable to secure an interview with Home Minister Datuk Seri Hishammuddin Hussein for comment. However, on 14 April, Hishammuddin was quoted as saying the ministry would consult stakeholders and non-governmental organisations in reviewing the ISA.
He was responding to an earlier announcement by Prime Minister Datuk Seri Najib Razak, who pledged to review the ISA after releasing 13 ISA detainees on 5 April.
V Ganabatirau of the Hindu Rights Action Force (Hindraf) being brought
out of the Kamunting detention centre on 5 April. He had been detained
under the ISA since 13 Dec 2007 (Pic by Raj Kumar, courtesy of theSun)
However, Hishammuddin had said the ministry would give priority to national interest and safety when reviewing the law. He also stressed that a review on the ISA should not contradict other statutes that allow for detention without trial.
Need for judicial review
Bar Council constitutional law committee chairperson Edmund Bon said “ouster clauses” in laws such as the ISA should be removed.
“The government must allow for actions carried out to be challenged on substantive grounds. They should be able to be reviewed by the courts.
“A minister must also justify his [or her] case publicly,” Bon said.
Section 8B of the ISA states that “there shall be no judicial review in any court … and no court shall … exercise any jurisdiction” over “any act done or decision made” by the home minister in the exercise of his or her discretionary power in accordance with the Act.
“Before the minister makes an order, the individual should have the right to be heard,” Bon said, adding that such a hearing could be done before an independent body that would make recommendations to the minister.
“At present, the minister makes up his [or her] mind based on police investigations or other intelligence sources. It is a subjective exercise of his [or her] discretion. There is no opportunity for the individual to present his or her side of the story and challenge the evidence presented to the minister.
“These are procedural measures that can be applied, in the event that our government wants to continue the policy of administrative detentions without trial,” Bon said.
Bon (Pic courtesy of Edmund Bon)But, he noted, all these measures fall short of the ideal.
“Where the matter of fundamental liberties are concerned, the Bar Council has been very clear in insisting that things must be carried out through the normal court process. Namely, by criminal prosecutions in a fair, open and public trial.”
Bon stressed that detained individuals should always be charged and have access to defence counsel.
Absolute discretion
Beyond detentions without trial under the three laws, there are many other matters in which ministers are, by law, given absolute discretion. One such example was the Pengurusan Danaharta Nasional Bhd Act, Bon said.
“The Immigration Act [also] empowers the minister to do all sorts of things, including detaining undocumented persons at will, in horrible conditions, in immigration camps,” he added. 
Hafidz Baharom says
Nalini’s statement is untrue, actually.
We are still living in a national state of emergency because there has never been a declaration by our government that the state of emergency is over, thus the ability to use the Emergency Ordinance in this day and age.
And trust me when I say that this is not an accidental occurrence nor someone merely forgetting to do so.
Umran Kadir says
It is misleading to claim that Nalini’s statement is untrue.
What Nalini is clearly getting at is that Malaysia is de facto not in a state of emergency, so why has the state of emergency never been lifted?
The answer is that the government wants to continue to have the option of exercising its powers under the Emergency Ordinance.
The effect of the government being able to detain people without trial (and thereby not have to produce a shred of evidence) is injustice of the highest order, not to mention it encourages sloppy police work.
As Edmund says it is the ouster clauses that prevent the courts from exercising any supervisory control over the government’s exercise of such powers. Until Parliament chooses to remove the ouster clauses that exist in numerous laws on our statute books the courts remain powerless to check the exercise of such powers by the Executive.