Police and water cannon during the 1 Aug anti-ISA rally (Pic courtesy of Merdeka Review)
MOB rule. “Ini bukan budaya kita”. Public nuisance. The 20,000 who marched on 1 Aug 2009 in Kuala Lumpur against the Internal Security Act (ISA) have been labelled these.
Whether or not one agrees with using street protests as a way to express an opinion, the fact is that peaceful demonstrations are recognised as a universal human right. Would the outcome of the march have been quicker and less messy if this principle were accepted?
In part one of a two-part interview, Parti Keadilan Rakyat (PKR) vice-president R Sivarasa talks to The Nut Graph after he was released following his arrest and two-day detention for being part of the 1 Aug anti-ISA rally. Sivarasa, who is also the Member of Parliament for Subang and a human rights lawyer, was arrested along with almost 600 others. He explains the dissatisfaction with the government’s ongoing review of the ISA, and how peaceful assemblies, allowed even in some neighbouring countries, need not disrupt public order.
TNG: What is Pakatan Rakyat’s response to (Prime Minister Datuk Seri) Najib (Razak)’s statement that there is no point demonstrating over the ISA, since the Act is being reviewed?
Sivarasa: The question of review is not the issue. We have a political position that, on principle, the ISA has to be repealed. And we’re exercising our basic democratic rights in expressing that view.
The real difference between us is: Pakatan upholds the right to peaceful assembly, and that’s a right we will guarantee the people if we run this country. Barisan doesn’t want to respect that right. And Barisan is prepared to inflict violence on people, to stop the peaceful exercise of that right. That’s the real difference between us.
So, this question about “why demonstrate when we are reviewing” is a red herring. It’s a non-issue. Our stand is that we want the ISA abolished, we have our arguments, and we have the political right to express that. What Najib fails to see is that he ought to allow the expression of that view. He’s entitled to his view as well.
Many argue that the ISA is still needed to keep terrorism in check. As the opposition, has Pakatan gone so far as to come up with its own draft law to deal with terrorism?
Our view is that, even after you remove the ISA, there are sufficient laws in the Penal Code and various other laws, including the Criminal Procedure Code (CPC), to deal with terrorist offences quite adequately. The Penal Code and the CPC were amended in 2006 to deal with that.
And we have already, in our criminal justice system, investigation periods of up to 14 days, which are long compared to some other countries such as the UK, which only allows for 24 hours for normal criminal cases. In Malaysia, for any crime you can be held for 14 days under the CPC with authorisation from a magistrate. Fifteen days, if you include the first 24 hours, for investigation. Even if the police say they need time to investigate because terrorism is involved, they still have 15 days.
Now, I’m going to compare with standards in other democratic countries to show how it should be — even in the United Kingdom, at the height of the IRA (Irish Republican Army) in the 70s, when bombs were being let off in pubs and people were being killed, under the anti-terrorism law at that time, you could only hold a person for four days. Just four days. That was for terrorism. For a normal crime, it’s 24 hours. In that time, police have to complete their investigations and make their decision whether to charge or not. After 24 hours, you must bring the person to court and either charge or release them immediately.
Now, British law allows for a maximum of 28 days of pre-charge detention for terrorism suspects. However, approval from a High Court judge must be obtained for detention beyond the first 14 days. Malaysia’s ISA, in contrast, provides for incommunicado detention for up to 60 days at the police’s discretion, before the home minister can sign an order for further detention without trial for up to two years. This is renewable indefinitely simply at the discretion of the minister. Malaysia has held ISA prisoners up to 16 years in detention.
Remember the Sauk incident involving the Al-Mau’nah militant group? Those who were arrested, charged in court and convicted were under normal laws [Section 121 of the Penal Code which is for the crime of "waging war against the King"]. Some were arrested under ISA, but others were dealt with under normal criminal laws, which is my point. You don’t need to create new laws.
Some make the false argument that you need the ISA for security because if you charge people in court, they’ll get bail and then go out and commit more terrorist crimes. If someone is charged with terrorism under other laws, it’s not difficult and in fact, probably appropriate to deny bail. The court will deny bail because it’s obvious if you let the suspect out, he [or she] might commit another offence. It’s done for every capital offence in this country, including murder. The accused is denied bail.
We could also do what is done in Indonesia, where they prosecute terrorists in open court. At the end of the day, it’s important that whoever you allege (to be a terrorist) is proven to be one. And it’s important for society to know what the evidence is. Bring the person to court, show the evidence, and then put him [or her] away. Then people will be satisfied that proper justice is done, and that the law is not being misused. In an open court trial, the very nature of the process is an important safeguard.
But you can’t know this with something like the ISA. Not just ISA; there are two other laws, the Emergency Ordinance and the Dangerous Drugs (Special Preventive Measures) Act, where hundreds of people have been locked up by the police on mere suspicion.
Such laws also allow abuse in terms of corruption, where money is taken in exchange for release. This has been written about by academics. There is a research paper on the Emergency Ordinance which points out that it’s a recipe for corruption, because it confers huge powers with no safeguards.
And in our country, the use of the ISA is clearly political. It has regularly been used to detain political activists, trade unionists, social activists. For example, in Operasi Lalang in 1987, and in the arrest of opposition party leaders and reformasi activists in 2001.
So if Pakatan comes to federal power, you would rely on existing laws to deal with terrorism?
Why not engage the government positively? You know the government is not going to repeal the ISA, so why not be proactive by contributing recommendations on where and how the ISA should be reviewed and amended?
Suhakam (the Malaysian Human Rights Commission) has already made a proposal for a law to replace the ISA [under a 2003 review], where the investigation period would be one month but authorised in smaller segments by a High Court judge. But after that one month expires, Suhakam is suggesting that the suspect must be charged. It cannot be a case of keeping the [person] in jail indefinitely, like now.
Those in Kamunting now have been there for seven, eight years. And there is still no evidence of any guilt as of now. So Suhakam’s own proposal is along the lines or similar to what we are saying, too. We say, you’ve got two weeks under the CPC. If you’re a professional police force, you should have accumulated enough evidence, and then you arrest and charge, apply to the court to deny bail if the crime warrants it, and put the suspect on trial.
When you suggest that we negotiate with the government, what do we negotiate on? On principle there is nothing to negotiate, because Suhakam has taken a position which is not too different from ours, and yet the government is not listening to Suhakam. The government doesn’t even listen to its own adviser on human rights, appointed under the law passed by this very government.
What happens under arrest