Categorised | Exclusives

What’s wrong with the ISA?


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 We have a political position that, on principle, the ISA has to be repealed.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?

Yes.

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.

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What happens under arrest

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6 Responses to “What’s wrong with the ISA?”

  1. Vin says:

    By itself, there may not be anything wrong with the ISA if it is used as originally intended. To fight terrorists. Or even criminal warlords.

    But the government is using it selectively to terrorise its critics.

    And that’s something very wrong with it.

    And that’s why it must be repealed!

  2. Alan Tan says:

    “Put it before them briefly so they will read it, clearly so they will appreciate it, picturesquely so they will remember it and, above all, accurately so they will be guided by its light.”
    — Joseph Pulitzer

    Well done.

  3. Nicholas Aw says:

    A great journalistic piece, Deborah.

    The problem here lies with the BN government. Despite the heavy beating, the BN/Umno are still in a slumber. They feel that there is no other party which has the capability of ruling the country.

    As much as the rakyat would like to believe that the ISA would be reviewed we can’t help doubting the sincerity of the government. In all likelihood the ISA would undergo cosmetic changes that would still retain the powers of the ruling government, that is, to detain without trial.

    As mentioned by Sivarasa, there is no other better way than to repeal this draconian law. We have adequate laws under the Penal code and the Criminal Procedure Code to ensure that criminals including terrorists are put behind bars.

    We do not deny that there are good points about the ISA. However, this archaic Act brings in more evil than good. Hence the August anti-ISA march. The government should have nothing to fear in repealing the ISA. On the contrary, it will be a plus point for PM Najib as the people would consider this repeal action as a government of the people and for the people.

  4. bala chandran says:

    Why did fewer Indian [Malaysians] join the anti-ISA rally?

  5. Gopal Raj Kumar says:

    Whilst it may be argued that in a perfect world, all things being equal, the ISA would be an anachronism as it is claimed to be by Sivarasa and his colleagues, the truth and the reality is that it does exist and has so without it being the blot it is claimed to be.

    The ISA has existed from the time of colonial administration. It has in fact been altered into more oppressive and severe forms of detention in so-called civilised countries including the US, Canada, Singapore and Australia from which Malaysians like Sivarasa [...] readily take their cue [from] and adopt [as] their models of civil liberty.

    Permutations of the original British model of detention without trial [as a] preventive measure against enemies, perceived or real, is nothing new nor morally repugnant as Sivarasa might suggest. It has, in fact, been a bullwark against clandestine and overt rebellion and forms of terrorism in places like Malaysia and Singapore.

    There is no way on God’s earth that the ISA will be repealed under a Pakatan or other non-Barisan government. It is not an option although politically (as a policy that will never be implemented), it remains an attractive draw for those naive enough to believe it can be repealed without consequence for state security.

    Sivarasa misleads with his interpretation of the British version of the ISA as applied during the hot war with the IRA during their campaign to end British rule in Northern Ireland.

    It was called internment then and it allowed for up to two years in detention without trial and for extensions of up to additional terms of two years at the end of each two-year term.

    That was one of the critical issues the IRA fought against and was a bargaining chip used by both sides to justify their respective positions. The IRA for their part kidnapped their detainees from the other side and detained them without trial, redress or their ability to be independently assessed for signs of torture or health issues.

    Britain, the US, Canada, China, India and Australia apply more sinister forms of detention without trial in their “rendering” of prisoners and suspects of terrorist organisations to countries like Syria, Egypt, Romania, Pakistan and Indonesia, all of which have no respect for human life or human rights. It was and continues to be a legally acceptable though morally repugnant form of outsourcing the constitutional rights of their citizens. This is different from the “outdated” and benign (by comparison) ISA.

    Sivarasa’s opposition, like that of Pakatan’s, to the ISA is an attempt to demolish the only protection a country, as vulnerable as Malaysia is, has to the machinations of Pakatan’s masters [...]

    The only thing Sivarasa has to his credit in this expose [...] is his admission that the anti-ISA movement is political and conforms to his party’s policy on the subject.

    Let’s have some real discussion on alternative governments now shall we? Or are we simply bent on being a mouthpiece of the PKR?

  6. Gopal Raj Kumar says:

    Once more, the question of selectivity in publishing responses that meet The Nut Graph’s editorial and political imperatives is evident.

    How different is The Nut Graph from the Barisan National which it allows and encourages its many contributors to condemn and villify?


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