Friday, October 3, 2008

The Relevancy of Select Committee on Internal Security Act 1960

ISA 1960 was passed under Article 149 of the Federal Constitution and section 8(1) states the grounds for detention for a period of two years upon which the order may be based on where a person has acted in any manner prejudicial to the:

i. security of the country or part thereof; of
ii. maintenance of essential services; or
iii. economic life.

Section 8(7) ISA 1960 allows the extension of the detention for a period of another two years and this subsection also allows further periods of detention of two years at a time. Further detention could also be based on the original ground or different grounds.

The intriguing issue is whether there is a need for ISA or a Select Committee be formed to study or revise the ISA to cater the needs of the present day situation?

Tunku Abdul Rahman had said that ISA was only to “be used solely against the communist." Tunku also said ISA was not to be used to stifle legitimate opposition and to silence lawful dissent. This was also repeated by Tun Hussein Onn who also gave assurance that it was not to be used to repress, “lawful political opposition and democratic citizen activity.” Tun Abdul Razak also promised the same thing, but, things later on changed. In 1966 when Mahathir spoke on the Internal Security (Amendment) Bill 1966 Mahathir said no one in his right senses like the ISA. The ISA was used by Mahathir, when he eventually became Prime Minister to silence his critics and political opponents in the infamous Operation Lallang.

The present Prime Minister Abdullah Ahmad Badawi, in 1988 in criticizing Dr. Mahathir on ISA was heard said, “Laws such as ISA have no place in modern Malaysia. It is a draconian and barbaric law.” When he became Prime Minister in 2003, Abdullah called ISA a necessary law. Abdullah could do something that went against his own words. This year, 2006 Abdullah Ahmad Badawi wielded the sword and those arrested under ISA not only included a political opponent, YB Teresa Kok, but, bloggers and a reporter.

Why? Was it not a weapon that was used as a sword by the Executive to control dissent voices and political opponents? Had we not diverted our attention from the original intention of ISA? I could see that it was a sword to preserve UMNO and the Executive rather that a sword to preserve the security of the country.

The Federal Court in the case of Kerajaan Malaysia & 2 Ors v. Nasharuddin Bin Nasir [2003] 6 AMR 497 has said that the ISA was a draconian law, but, legal under the Federal Constitution.

Since it is a draconian law, why should we keep it? Is it not barbaric and only for the primitive people only?

Now coming to the issue itself, a select committed on the matter does not arise and should be abolished on the following grounds:-

i. It has been consistently been abused by the Executive not for preservation of national security, but, the preservation of the government of the day and no amount of review or amendment to law could desist the Executive from abusing it or from reviewing or amending it to suit the government of the day;

ii. Although Article 149 of the Federal Constitution under which ISA was enacted permitted special legislation when subversive action has been taken or threatened, “by any substantial body of persons”, Under the said Article 149 of the Federal Constitution, ISA was supposed to be used against “substantial body of persons” but, ISA has often than not been used to detain individual dissents indulging in non-violent activities against the government. Those who had been arrested under ISA include environmentalists, trade unionist, journalists, passport forgers and consumerists. You can name whatever activity, ISA could easily be applicable to it. There are sufficient laws already in existence to control the activities of these activists;

iii. ISA should be used as a sword and a shield against foreign aggression, but, not against citizens who have a fundamental right of protection of the state and should only, if they transgressed against the law, be dealt in accordance the existing laws different from foreign aggressors;

iv. ISA is a blatant violation of international cannons of the rule of law, natural justice and due process of law;

v. With ISA the rule of fair justice has been removed where the Executive is allowed to act as accuser, investigator as well as adjudicator and the detainee most often, has no course to justice in court. This is against the theory that a man’s life and liberty should not be decided by one man alone;

vi. ISA has caused international embarrassment to Malaysia as a country being backward, coward and inhumane to citizens and human beings where information on arrests was also withheld from the detainee. If information is withheld, the detainee could not know the true reasons of his arrest;

vii. A detainee could be arrested for very weak or on no evidence at all and on flimsy reason based on the subjective reason of the Minister in which is not questionable by the courts. So long the Minister applied his mind to the arrest that the detainee was a threat or had been acting in a manner prejudicial to the country, the detention is legal;

viii. Islam is our official religion. Many scholars said detention under ISA without trial is against Islam as the religion itself does not allow any detention without trial.

If we are to speak of national security, there are already sufficient laws to safeguard our country. This could be found in chapter V1 and V1A of the Penal Code. Chapter V1 includes waging war against the State or the King or causing harm to rulers, Members of Parliaments and harbouring persons who show hostility towards the State while Chapter V1A is in respect of offences of terrorism. All these provisions are sufficient to protect national security and the Penal Code protects the right of detainees to seek justice in Court consistent with the preservation of human rights.
Respect of human right is the key to progress and world peace and ISA is a sword that can lead to dictatorship, anarchy and civil war.

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