THE first question out of six that were posed to all Members of Parliament (MP) in the MP Watch: Eye on Parliament project was: “Would you support the abolition/review of the Internal Security Act (ISA), in particular the provision that allows for detention without trial? Why or why not?”
Among the 113 MPs who participated in the project, 46 were from the Barisan Nasional (BN). Most said that the ISA was still needed to protect national security. However, the majority agreed that the ISA should be reviewed, but opinions differed on whether to retain the provisions that allow for indefinite state detention without trial.
In sharp contrast, almost all Pakatan Rakyat (PR) elected representatives called for the abolition of the Act. They repeatedly stressed that detention without trial was a human rights violation. They also argued that the ISA was frequently abused to silence political dissent.
Only 24 out of 78 Umno MPs responded to MP Watch. Nearly all of them said no to abolishing the ISA, citing “national security” and similar preventive laws in other countries. Some, however, agreed that a review was needed.
“The ISA is still a necessary tool to curb extremism, terrorism and other threats to national security,” said former Home Minister Tan Sri Syed Hamid Albar (Kota Tinggi).
“From time to time, even the US has internal security laws that allow for detention without trial in the interest of national security, for example at Guantanamo Bay previously,” said Datuk Hasan Malek (Kuala Pilah).
Other Umno MPs cited the UK and Singapore as examples of countries with preventive laws.
Umno Youth chief Khairy Jamaluddin (Rembau) was the only Umno MP who said he would support the abolition of the ISA if it was replaced by another Act that allowed for preventive detention under strict guidelines. “Most importantly, these powers should never be used to stifle legitimate political dissent,” Khairy stressed.
BN: MCA, MIC and other component parties
All nine MCA parliamentarians who replied to MP Watch supported a review of the ISA. Some of them acknowledged that certain provisions in the ISA were open to abuse. “The provision for detention without trial should have safeguards and check and balance to avoid abuse by authorities,” said Chua Tee Yong (Labis).
Others also suggested shortening the detention period.
Similarly, all four MIC elected representatives were against abolishing the ISA but supported a review. “[W]e should continue the ISA, but it … must be reviewed to specifically state on whom [the Act should be applied], for what kind or category of crime. That has to be very clear, or it can be abused. The law cannot be open-ended,” said Datuk Devamany S Krishnasamy (Cameron Highlands).
MPs from other BN component parties like Gerakan, PBB, PBS, PBRS, LDP and Upko also backed the government’s initiative to review the ISA. “I am for a review of the ISA. The Act should be used to counter terrorism and threats to national security, and not [be] based on any political considerations,” said Datuk Dr Maximus @ Johnity Ongkili (PBS – Kota Marudu).
The only exceptions in this group of MPs were Fadillah Yusof (PBB – Petra Jaya), who stressed that the ISA was needed for national security and should be strengthened; and Joseph Salang Gandum (PRS – Julau), who refused to comment on the issue.
All 18 PAS MPs wanted the ISA to be abolished. “[Detention without trial] is against the universal principle of justice, and incidentally runs contrary to the Islamic legal maxim of Al-aslu bariatul zimmah or the equivalent of ‘innocent until proven guilty’,” said Dr Dzulkefly Ahmad (Kuala Selangor).
He added that the Human Rights Commission of Malaysia (Suhakam) had also recommended that the government repeal, not reform, the ISA, and replace it with new security legislation that does not violate human rights.
Dr Lo’ Lo’ Mohamad Ghazali (Titiwangsa) also commented that the government may claim it would only use the ISA as a last resort against terrorists, but in reality, it is wielded as a weapon to silence the opposition.
Similarly, out of the 22 DAP MPs that responded to MP Watch, 21 wanted its abolishment while one supported its review.
Apart from describing the ISA as draconian, Chong Eng (Bukit Mertajam) said Malaysia already had sufficient laws to prosecute criminal and civil offences. Teo Nie Ching (Serdang) added that the ISA violated the doctrine of separation of powers. “The home minister as the executive cannot and should not be allowed to confer on himself [or herself] such judicial power [to detain an individual without trial indefinitely],” argued Teo.
Teresa Kok (Seputeh) also highlighted that during Operasi Lalang in 1987, the government detained 106 people under the ISA, “mainly opposition politicians and social activists”. In 2008, Kok was also arbitrarily arrested under the ISA with Sin Chew Daily reporter Tan Hoon Cheng and blogger Raja Petra Kamarudin.
“The ISA has also created an atmosphere of fear in our society by preventing people from speaking their minds, and in the process, has stifled critical thinking among our younger generation,” said Loke Siew Fook (Rasah).
Among the 21 PKR MPs surveyed, 20 wanted the ISA abolished. Datuk Rashid Din (Merbok) supported only a review, saying, “In some cases, detention without trial may be necessary.”
Most PKR MPs, like Datuk Kamarul Baharin Abbas (Telok Kemang), opined that a “person cannot be detained simply because the government is unable to prepare a strong case to charge the person in court, or [because] they feel politically threatened”.
Fuziah Salleh (Kuantan) said even if there was a need to detain a person, “he or she must be brought to trial within a certain period of time. A detainee cannot be at the mercy of one person’s signature, the home minister’s, and be detained further every two years indefinitely”.
Four out of the six independent MPs who responded to MP Watch also said they would support abolishing the ISA.
Only Datuk Ibrahim Ali (Pasir Mas) believed it should be retained in the interest of national security. At the same time, Tan Tee Beng (Nibong Tebal) said detention without trial could be retained in any review of the ISA, but should be restricted to “serious offences like treason and terrorism”.
Why BN won’t budge
Abolish ISA Movement president Syed Ibrahim Syed Noh notes that the BN government is not likely to surrender its most useful tool of power. Hence, it is only logical that a majority of BN MPs merely expressed support for the ISA to be reviewed, instead of abolished, despite overwhelming criticisms from at home and abroad.
“[But] taking the history of ISA [into account], [I] suspect these [government] amendments will be minor and merely cosmetic. [They] will do nothing to prevent continuing injustice and human rights abuses,” Syed Ibrahim predicts in an e-mail interview on 30 Aug 2010.
He adds that a meaningful review of the ISA must include amendments of the provisions that allow for detention without trial, and any other provisions that contravene the principles of justice, transparency and human rights. “An emergency law by its very nature curtails individual rights, [and should] be avoided as far as possible,” Syed Ibrahim says.
He argues that if Parliament thinks it is necessary to have an emergency law to counter terrorism post-9/11, then it must be a totally new one since the ISA’s original aim in the 1960s was to curb and crush the communist movement. “The situation is different [now],” Syed Ibrahim says.
He adds that any proposed new security law must be formulated by experienced judges and legal experts. It must also have credible and stringent built-in check-and-balance mechanisms, and a sunset clause.
He adds that civil society needs to work together to reach the public and pressure the ruling government to abolish not just the ISA but other preventive laws, such as the Emergency Ordinance and the Dangerous Drugs Act, in the long run.
This essay first appeared exclusively in Understanding the Dewan Rakyat, together with other analyses on how our government works. The book also contains the profiles of the current 222 MPs and how they and their parties would vote on key issues of democracy. The book was launched by Speaker of the House Tan Sri Pandikar Amin Mulia at the Dewan Rakyat on 23 March 2011. It is available at PusatLoyarBurok.