What’s wrong with the ISA?

WHEN it comes to justifying the Internal Security Act (ISA) 1960, the Malaysian government has honed its replies down pat — after the usual noise about how we still need such laws to keep the peace, they then fall back on the old chestnut — others are now doing it, too.

There are growing calls for the repeal of the ISA, which allows for detention
without trial (© Neil Gould / sxc.hu)

This deft attempt at deflecting responsibility is repeatedly played out by our leaders, especially now, when faced with growing calls by civil society groups and even from within the Barisan Nasional (BN) ranks to abolish the law.

The simplistic reasoning given by some ministers in justifying the continued use of the ISA is this: why should we get rid of it when Western countries have followed us by creating such laws, too? In fact, our leaders are fond of comparing the ISA to similar preventive detention laws in other countries, their favourite picks being the US and UK.

Recently, Prime Minister Datuk Seri Abdullah Ahmad Badawi repeated this mantra when asked if the government would review the ISA, as suggested by BN component parties, Gerakan and the MCA.

Both parties in their annual general assemblies in October 2008 passed similar resolutions acknowledging that the ISA was outdated and had been abused. The parties called for a review of the act, or for it to be replaced with a specific anti-terrorism act.

Abdullah, on 18 Oct, said it was still a valid law and pointed out that other countries in the West had begun using preventive detention laws. Predictably, he cited the US and the UK.

The implication is that Malaysia has been vindicated now that these countries, touted “champions” of democracy and human rights, have resorted to the draconian law that they, especially the US, have criticised Malaysia for. See, our leaders seem to imply, we were right all along.

True, laws that allow for detention without trial, such as the USA Patriot Act 2001, and the UK’s Terrorism Act 2006, came about as needful responses to the 11 Sept 2001 World Trade Centre attacks and the 7 July 2005 London bombings.

But they ought to be compared with the ISA before deciding if our leaders’ glib statements are really justifiable.

Pot calling kettle black

The Bar Council human rights committee chairman Edmund Bon says such statements are shallow and motivated by political agenda.

Bon: The most unjust part of the ISA is the
prohibition of judicial review on the
minister’s decision

“Firstly, if it is alright to retain the ISA, then why is the government calling on the US to close down the Guantanamo detention centre? Why the double-standards?

“Secondly, the PM and the government are playing with words and spouting political rhetoric. They have not analysed or read the laws of these other countries to realise the differences,” Bon says.

An overview of the ISA, Patriot Act and Terrorism Act will show that key differences lie in the safeguards and access to legal recourses for detainees to challenge their detention.

The similarities are in the basis used to justify preventive detentions. They centre on deterring threats to national security before the acts themselves occur. In the Patriot Act, the grounds for arrest are the engagement in terrorism or any activity that endangers US national security.

In particular, the act targets foreigners who attempt to enter the US in order to spy, to illegally export goods, technology or sensitive information, or who are attempting to control or overthrow the government.

Grounds for arrest under the UK’s Terrorism Act are to let the authorities intervene before details of a planned attack are known. It even criminalises indirect incitement to commit acts of terror, as well as the providing or receiving of terrorist training.

Under the ISA, detentions can be ordered by the Home Affairs Minister if he or she is satisfied that that a person has acted in any manner prejudicial to the security of Malaysia or part thereof; maintenance of essential services; or, economic life.

The similarities show that it has become harder to argue against preventive detention after the 9/11 World Trade Centre attacks, which left countries feeling vulnerable.

Misuse of the law

But therein lies a rebuttal to our ministers’ keenness to link the ISA to similar acts. The US and UK laws were in response to a fresh and ongoing threat of terrorist attacks on their soil. The ISA however, is a relic from colonial times meant to deal specifically with the communist threat during the Emergency. This threat no longer exists.

Furthermore, the US and UK laws specifically target those believed to be terrorists, while the history of the ISA’s use has shown that the law has been broadly applied against even lawful political opposition and democratic activity by citizens.

The clearest, most significant admission of this came not from a member of the opposition, but by a cabinet minister, Datuk Zaid Ibrahim, who resigned from his post as Minister in the Prime Minister’s Department and de-facto law minister, on 16 Sept 2008 to protest the use of the ISA.

Datuk Zaid Ibrahim at a press conference announcing his resignation

In his open letter to Abdullah on 29 Sept, Zaid noted that some of the ISA detainees could barely be considered a threat to national security. They were political opponents of the ruling Umno, yes, but not a threat in the way of picking up arms to topple the government.

Even in the cases of those who were suspected of militant activity, little evidence has been brought forth to support such assertions. The arrests under the ISA of reformasi activists in 2001 and the Hindraf five in December 2007 are similar in that both were alleged to have terrorist or militant links, but the authorities have not shown anything to prove this.

Bon notes, the purpose of preventive detention is to give more time to the authorities to investigate a suspect and the threat he or she poses, and is not meant to punish the person.

“The spirit of such laws is not to detain a person indefinitely. It is to detain solely for further investigations. Once the investigations are complete, the person is to be charged or released.

“Here, the ISA is used to imprison persons as punishment for alleged offences which cannot be proven in court,” he says.

Cruel intentions

Syed Ibrahim Syed Noh, chairperson of the Abolish the ISA Movement or GMI in its Malay acronym, says the ISA is more draconian than similar laws in the US and UK because of the longer detention period and the lack of judicial review.

Syed Ibrahim Syed Noh

“ISA provides for arrest of up to 60 days before detention for two years, and then there’s still no trial. Under other laws, there is room for the detainee to be charged and be given a trial. But extensions under the ISA are at the minister’s discretion. It is very indefinite and arbitrary,” he says.

Under the Patriot Act, a detainee can be held for the first seven days without facing any charge. But during this time, the attorney-general must initiate removal (deportation) proceedings or press charges, failing which the detainee has to be released. If deemed a threat, the detention order can be extended for up to six months, with the detainee applying for a review every six months.

Under the UK’s Terrorism Act, a pre-charge detention order for beyond 14 days and up to 28 days must be obtained by an application to a High Court judge.

In contrast, the ISA allows for two years’ detention without trial. The detention order can be renewed every two years, thus extending it indefinitely at the minister’s discretion. Prior to the two years, a detainee can be held for 60 days without being required to appear in court.

This is not to say that the US and UK laws are “better” because they allow for shorter detention periods. Indeed, both governments have come under heavy criticism by human rights groups and civil society in their countries for the lack of safeguards in these laws to protect detainees’ rights.

That as of March 2007, 385 detainees have been held at the Guantanamo Bay detention centre for five years, without ever facing charges, is testament to the human rights flaws in the Patriot Act.

The UK law also lacks safeguards to ensure an adversarial hearing (where both parties get to argue their positions). A judge may deny the detainees and their lawyers the right to appear in the hearing. The judge can also withhold material used by the prosecution to argue for the detainee’s extended detention.

Home Minister’s absolute power

It is the total prohibition of judicial review on any decision by the minister’s discretionary powers under the ISA that is most unjust, says Bon. This amendment to the law was made in 1989.

“The jurisdiction of the courts is not ousted (in other countries) unlike here under Section 8b (of the ISA),” he says. The provision means that detention orders by the minister cannot be challenged in court, effectively shutting off any chance for a detainee to seek legal recourse.

There is the Advisory Review Board which is allowed review a detainee’s status, but only after the minister has ordered a two-year detention, and not during the first 60 days of arrest. The board is essentially powerless, as it can only make non-binding recommendations.

Closing the door on judicial review for a detainee is a violation of the Federal Constitution, what more international human rights laws. Article 5 of the constitution states that the courts should inquire into any complaint about a person being unlawfully detained, and unless the court is satisfied that the detention is lawful, the detainee shall be produced in court and released.

“There is no independent body to look into the detentions. The advisory board is a sham, kangaroo court. The police arrest, they detain, and then they seek further authorisation for detention from the minister. The minister then continues the detention. There are no checks and balances,” Bon says.

“Even if a lawyer wishes to provide evidence to rebut the grounds of detention, he will be stopped from doing so. Parliament has usurped the powers of the court by enacting section 8b and allowed the minister absolute powers of detention.”

Datuk Seri Syed Hamid Albar fielding questions from the media on 13 Sept 2008, a day after the arrests, under the
ISA, of Malaysia Today‘s Raja Petra Kamarudin, Seputeh Member of Parliament Teresa Kok and Sin Chew Daily
journalist Tan Hoon Cheng. Kok and Tan have since been released.

However, Home Minister Datuk Seri Syed Hamid Albar disagrees that there are no checks and balances to prevent abuse of the law. In an interview with The Star Online on 22 Oct, he denies that there is no due process involved when someone is detained under the ISA.

“Even under detention by the minister, the due process is that you can still bring habeas corpus in order to determine whether the grounds (cited) by the minister are correct. If the court is not satisfied, it will release the person,” he is reported to have said.

He also stoutly defended the continued use of the ISA. “The bottom line is public interest, which is equal to maintaining public order, maintaining security and understanding perceptions and threats. If we are wrong, then the court can decide that we are wrong. But meanwhile, we cannot wait for things to happen in order for us to take action,” he added.

Return power to the courts

Notwithstanding flaws in the Patriot Act and the Terrorism Act, the ISA is arguably worse in its absolute lack of checks and balances. Is maintaining the ISA in this present form still justifiable because “other countries have it, too”? Even then, the comparison is not quite accurate, because at least the US and UK laws have safeguards.

The government has shown no interest in repealing the act. But it should not be afraid to consider a review or to replace it with an anti-terrorism act. Either of these two options still allows it to argue the need for preventive detention laws in the face of globalised terrorism, but also ensure that unjust provisions are removed or amended.

There is no need to start from scratch. The National Human Rights Commission (Suhakam) in 2003 had made proposals in its “Review of the Internal Security Act 1960” report. Long before the MCA and Gerakan suggested an anti-terrorism act, Suhakam already raised it. Its other proposals require judicial authorisation for the police to extend detentions, and for a cap of 29 days on detentions after which a person must be charged or released.

The government has so far refused to repeal the ISA. But if it would do only one thing about it, it should be to restore scrutiny of detention reviews to the courts.