Let right be done

IT is easy to focus on the recent cases of Internal Security Act (ISA) detentions because the three who were taken in — Malaysia Today blogger Raja Petra Kamarudin, Sin Chew Daily journalist Tan Hoon Cheng, and DAP Member of Parliament (MP) for Seputeh Teresa Kok — are public personalities with varying levels of exposure.

Indeed, by virtue of Raja Petra’s controversial postings that make him a hero among many Malaysians, Tan’s reporting of Datuk Ahmad Said’s hurtful penumpang remarks about Chinese Malaysians, and Kok’s profile as a vocal opposition MP, the attention on their detention has been understandable. The other group of detainees who remain in the public’s consciousness are the five Hindraf leaders who are being held at the Kamunting detention camp.

Amid the euphoria of having Tan and Kok released so quickly from detention because of public scrutiny and pressure, and the ongoing outrage against Raja Petra’s and the Hindraf five’s continued detention in Kamunting, it would be easy to forget that there are scores of other people who are ISA detainees.

In a speech on 29 Aug 2008, Malaysian Bar president Datuk Ambiga Sreenevasan named about 60 other, mostly forgotten, detainees who are being held indefinitely by the state without trial. Many of them are foreigners.

According to the Gabungan Mansuhkan ISA, the latest known number of ISA detainees is 64. Out of these, seven, including Raja Petra, have been detained for less than a year, five for one year, and 19 for two years. More alarmingly, 12 have been detained for three years, five for more than four years, and 11 for more than five years. And incredible as it may sound, five have been held without trial for eight years!

Introduced in 1960, the ISA was drafted at a time when the nation was emerging from the Emergency. In a 2001 interview, the drafter of the legislation, the late law professor Hugh Hickling, told me and my Star colleague that in 1960, then Deputy Prime Minister and Home Minister Tun Abdul Razak asked for the law to be drafted because the government was winding up the Emergency but there were still pockets of terrorist activities.

He explained that the law was created at a time in Malayan history when the judicial process was deemed incapable of prosecuting communists suspected of violence because people were afraid to give evidence for fear of their lives.

The article in the Sunday Star newspaper, 22 April 2001

Hickling also stressed that the law was never aimed at politicians and ordinary people, noting that first prime minister Tunku Abdul Rahman had in 1987 also given an affidavit in court to this effect.

“Eventually, we had expected to get rid of it,” he said in the 22 April 2001 Sunday Star report, disingenuously titled ISA still relevant for Malaysia, which I co-wrote.

Enabling abuse

In 2001, Hickling, who was visiting Malaysia, said he never thought the ISA would still be in existence 40 years later.

But the law, which clearly violates the human right to a fair defence because it allows for indefinite detention without trial, doesn’t just remain with us. Through the years, the ISA has been amended numerous times, including removing judicial review in 1989 under Tun Dr Mahathir Mohamad’s administration. “We would never have dreamt of doing that even in 1960,” Hickling said.

Indeed, according to current Foreign Minister Datuk Seri Dr Rais Yatim in a paper he presented at a Bar Council seminar in 1997, the ISA’s powers had at that point been extended through 20 amendments since 1960.

“In all these amendments, the trend has not been to strengthen the rule of law, but to add on to the already formidable array of executive powers under the Act as well as those in other legislations,” Rais said in his paper.

The most damaging to civil liberties has been the 1989 amendment limiting judicial review, both Hickling and Rais said. “Even in 1960, we thought the law needed checks and balances. As soon as you oust judicial review, the executive can do anything it wants,” Hickling said.

Hence, the situation today is that just about anyone can be picked up and detained under the ISA, for the vague crime of “threatening national security”, although what exactly is threatening is never ever spelt out or legitimately tested.

In the case of Tan’s detention, it was, according to Home Minister Datuk Seri Syed Hamid Albar, because she somehow needed “protection”. But nobody will ever know if this farcical explanation holds any truth since the government does not have to account for its actions under the ISA. 

In the case of Raja Petra, he was sent to Kamunting for two years because the government was satisfied there were “strong grounds” for him to be further detained. If these grounds were so convincing, what is stopping the government from charging Raja Petra in open court?

For the other ISA detainees, most of whom are unknown and mainly forgotten, we may never know why they are being detained at the government’s pleasure. And really, it is the government’s pleasure at work here because the ISA gives the executive unqualified power to do what it wants without being held accountable.

Malaysian Bar president Datuk Ambiga
SreenevasanAmbiga’s speech was made at the launch of the report by a panel of eminent persons on the 1988 judicial crisis. When she named the more than 60 ISA detainees in her speech, it was a slight departure from the morning’s events.

But her speech, titled Let right be done, was about doing right by the rule of law. And it was about doing right by Malaysian citizens in a democracy. “Incarcerating [people] without trial is a tremendous disservice to the Rule of Law.”   

Many in government already recognise this. Hence, the proposals by even Barisan Nasional leaders calling for the ISA to be reviewed, and Datuk Zaid Ibrahim’s principled resignation from Datuk Seri Abdullah Ahmad Badawi’s cabinet.

These leaders and the others in the opposition and civil society who have consistently asked for the ISA to be repealed are calling for right to be done. Our own history tells us that the ISA is being abused.

The prime minister and the others within his administration and party who refuse to acknowledge this and dismantle the ISA expect us to believe and trust in their leadership. But why should we? And how can we when clearly doing right is the furthest thing on their minds?

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Jacqueline Ann Surin wants right to be done by all those who are detained without trial at the government’s pleasure.