Dato Dr. Rais Yatim
Advocate & Solicitor, High Court of Malaya
This article highlights issues relating to executive detention and
the reasons and justifications as to why the Internal Security Act
1960 (ISA) should be repealed. The other major laws on preventive
detention are the Emergency (Public Order and Prevention of Crime) Ordinance
1969 and the Dangerous Drugs (Special Preventive Measures) Act 1985.
It also puts into perspective as to why judicial guidance must be made
to bear upon administrative incarceration of persons and the right to seek
a writ of habeas corpus.
THE PAPER AIMS to highlight the pressing issues relating to executive detention and the underlying reasons and justifications why the Internal Security Act 1960 (ISA)2 in particular must now be brought into a new phase of re-evaluation with a view to bringing about its final repeal. In the event that this proposal is still considered farfetched by the authorities, then at least certain basics must be introduced so that judicial review,3 removed since 1989, could be in the works again. Freedom for the individual remains just as coveted and cherished as the general freedom and welfare for society at large which the authorities claim to have higher premium. The paper puts into perspective why judicial guidance must be made to bear upon administrative incarceration of persons who are suspected to have transgressed the bounds of security of the state.
The topic under discussion is somewhat a sequel to the Bar Councils seminar held at the Federal Hotel three years ago4 when we commemorated 1994 Human Rights Day. There we discussed the topic: Preventive Detention: Has it Outlived its Purpose? Expectedly, the seminar then concluded, after a thorough mind-searching, that preventive detention had outlived its original purpose. You will recall, we sent a memorandum to the government imploring that the Internal Security Act (ISA) in particular ought to be repealed. Whether or not our views were considered it is not clear because we never received a reply. However, there were a few statements, especially from the then Deputy Home Minister, that the ISA was indeed under review and that the use of the ISA would be restricted to espionage, incitement of race and religion, economic sabotage and falsifying of identification and travel papers.5 It was also reported in 1994 that the government was amenable to reviewing the ministerially-determined period of detention of two years.6 Although many thought that the ministers statement was encouraging news, in effect the proposal to tinker with a lesser detention period is of no avail because under s.10 of the ISA the minister concerned is already empowered to shorten the detention period unilaterally if he so desires. That was the closest we got to in terms of an indirect reaction from the authorities. Then all was quiet on the common front.
The media reported some weeks ago that 10 persons propagating the Syia sect were detained for acts perceived to be prejudicial to the security and or public order of the country. Before that arrests were made in Sabah of those suspected of issuing forged identity cards as the basis of an illegal commercial transaction. At one point there was also talk of using the ISA against mobilephone cloners by the Police but thanks to the Home Ministrys early intervention the plan did not see the light of day.7 As highlighted in the Memorandum before you, gross misunderstanding of the true purpose of the ISA is nothing new. Hence its possibility for abuse is no longer tentative but established. One needs only to peruse the list of those arrested and detained in past years. Illustrative of this is Operation Lalang 1987 where out of the 106 arrested under s.73 of the ISA more than 20 were individuals who were leaders in their own fields who held competing or opposing views vis-à-vis those in government.
And now, again, to commemorate this years Human Rights Day, we put for deliberation the topic: Detention Without Trial: Has the Time for Abolition Come? Critics of the Bar Council, and perhaps those who look at human rights as a big joke may be quick to say that we are harping on an old tune.
So we are. It is this old tune that the Bar Council, NGOs, democrats and all fair-minded and peace-loving individuals should continue to sing for the simple reason that administrative detention without resort to judicial review as envisaged under the ISA is untenable in an environment that is supposed to be safeguarded by rule of law.
Therefore, if there be harsh words against us here today for participating in this commemorative function, we will just reply by saying that for the sake of freedom and justice we will continue to work, to minimise and finally do away with excessive arbitrary power so that a system of check and balance truly exists in a rule of law environment.
In response to the topical question of this seminar, one is tempted to say right away: Yes, it is time for the Internal Security Act (ISA) to be abolished. We are saying this not in any antagonistic manner. Neither are we saying it in any political fervour. We harbour no ulterior motives. The ISAs repeal is voiced purely on account of being concerned with adjudicated fairness in determining a persons wrongdoing.
If there is any law in the country that supports raw power and arbitrariness in extremity, it is the ISA. If there is any law that categorically shuts out the courts, it is the ISA and its other kindred legislations.8 It is feared, not so much for its hazardous interrogations and ensuing confinement conditions, but rather for the individuals helplessness in knowing that he cannot assert his basic rights to defend and maintain his innocence in a court of law. This becomes more so after Parliament passed amendments to the ISA, EPOPCO and the SPMA in 1989 which have the cumulative effect that no power or act of the minister under the legislations may be brought into question in any court of law. This denial of judicial review, which includes writ of habeas corpus, was unabashedly copied from Singapores amendment to its own ISA following the milestone case of Chng Suan Tze v. Minister for Home Affairs Singapore9 which decided against the assertion of subjective test in determining whether or not a person was prejudicial against the security of the state. The amendment spells the worst setback for detainees. Without the benefit of judicial review to question the ministers act or omission under the relevant provisions how is a detainee to avail his constitutional rights? And judging from the general judicial attitude surfaced from local detention cases a detainee appears to be left in the cold with more than constricted rights.
4. GENERAL POSITION
There are three major preventive detention laws in force in Malaysia: The Internal Security Act 1960 (ISA), the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO), and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DSPMA). The pattern of their enforcement is broadly similar but the resultant trauma on the detainee differs greatly. Any person may be detained by the police for up to 60 days on suspicion that he may be a subject fit and proper to be detained under authority of the Minister up to two years each time. In the case of the ISA, it is suspicion, inter alia, that an act of a person has prejudiced the security of the country or any part thereof; in the case of the EPOPCO it is the perceived criminal act of a suspect which cannot be ordinarily proved in a court of law10 and under the DSPMA it has to do with the police suspicion that a subject has committed dangerous drug-related offences.11 Although our concern is on detention without trial generally, it is the ISA that merits specific discussion.
5. THE INTERNAL SECURITY ACT 1960 (Act 82) ISA
The ISA, succeeding the Emergency Regulations 1948, was enacted pursuant to Article 149 of the Federal Constitution12 which authorises the passing of legislation notwithstanding its consistency with fundamental liberties contained in Articles 5,9,10 and 13 of the Constitution. The ISA appears to be more supreme than the fundamental liberty provisions. Already, Article 5 has been superseded by the Restricted Residence Enactment 1933 (RRE) since the decision in Loh Kooi Choon v Government of Malaysia13 in 1977. The appellant, who had to wait 4 years before his appeal was heard by the Federal Court, had been arrested and detained under a warrant issued under the provisions of the RRE. The appellant had not been produced before a magistrate within twenty-four hours of his arrest as required under Clause (4) of Article 5. The appellant appealed but before his appeal was heard the Federal Constitution was amended whereby Article 5(4) of the Constitution was declared not to apply to the arrest or detention of any person under the existing law relating to restricted residence. This amendment was backdated to Merdeka Day.14 Submission that the amendment was bad on the ground that it destroyed the Constitutions basic structure was ignored by the court.
The ISA was enacted with the main aim of countering militant communism and subversion against the state. The Emergency Regulations 1948 had served their objectives and when the Emergency ended on 30 July 1960, the Emergency Regulations Ordinance 1948 was repealed but its Regulation 17, i.e the provision that provides for detention without trial found its way into Part II of the ISA. The new law was supposed to be a temporary one but its longevity plus the power-added attributes by way of the denial of judicial review as a right have proven that the Act might indeed be a permanent feature of Malaysian life. The ISA was supposed to have a temporary life but as history has proven, it has become more sacrosanct and lasting than the liberty provisions of the Constitution.
As to the temporary nature of the ISA, R.H. Hickling, its original
draftsman, commented in 1962:
.I must hope that the practice of imprisonment without trial, charge or conviction admitted by the Act 1960 will not be regarded as a permanent feature of the legal and political landscape of Malaya or for that matter of Asia generally.15The decision to continue to administer the country under draconian laws while the emergency was officially at an end must also be looked at the point of view of the executive who made the political decision. The fear of recurring terrorism must have occupied the thinking of government leaders then. In this connection, on 21 June 1960 the late Tun Abdul Razak Hussein,16 Deputy Prime Minister who was also Home Minister then told Parliament that the security of the Federation was still very much in issue on the basis that there was still a need for the people to be protected from communist subversion.17 He also gave the assurance that the ISA would be used with the utmost care so as to avoid abuse.18 Malaysians have never doubted the sincerity of Tun Razak and subsequent leaders. But somewhere along the line the system gets entangled in its own hang-ups and reports of power abuse begin to seep from behind the wire.
Communist terrorism, which was the basis of the ISAs enactment in 1960, lost its relevance, at least since the 1970s and even more so after the 1989 Bangkok Accord following which terrorism from the communists caeased altogether.19 Hence the need to continue with an emergency-like administration has been even more questionable in view of the total absence of the ISAs original premise. But as well know now, where old reasons and justifications evaporate as the nation progressed, new ones have been put in their place.20 The question of abolishing the ISA becomes more and more distant.
The ISA was enacted under the general authority of Article 149 of the Malaysian Constitution which has been designated as the constitutional canopy for legislation against subversion and act prejudicial to public order.21 Article 14922 stipulates that for an Act such as the ISA to be valid all that Parliament has to do is to recite that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation in respect of three main situations falling under its ambit: organised violence against person or property;23 the excitement of disaffection against the Yang Di Pertuan Agong or any government in Malaysia;24 and the promotion of feelings of ill-will and hostility between different races or classes of the population.25
The words to excite disaffection against the Agong or any government in Malaysia connote that even political criticisms against the government in power could be construed as being violative of Article 149 and if the Home Minister was satisfied that such action was prejudicial to the security of Malaysia or any part thereof then he is empowered to detain such persons under s.8(1) of the ISA. The ISA is also applied to any attempt to alter anything that is established by law.26 This appears to be so wide a power that almost anything done by way of legal instrument by the government, alberit draconian, may be taken against and deemed valid. Action taken by virtue of any law passed under the recital of Article 149 also covers public supply and services27 and finally, anything done or about to be done that is considered prejudicial to public order or security of the Federation may be acted against.28 Laws falling within any or all of the above provisions are valid notwithstanding that they are inconsistent with the fundamental liberty provisions under Articles 5, 9, 10 or 13 of the Constitution. The ISA overrides fundamental liberties.
The ISA contains three parts and is divided into six chapters, 86 sections and three schedules. Part I is devoted to provisions relating to internal security, Part II relates to security areas and Part III pertains to miscellaneous matters. The entire Act is administered by the Police with the Minister at the apex of it.
Sections 8, 22, 57 and 73 have been the most controversial because of the powers they give to the Minister and the police respectively to effect arrest and detention as well as to allow other acts that are normally invoked during an emergency. Section 8, echoing the words under Article 149(1)(f) of the Constitution, empowers the Minister in charge of internal security29 to detain any person if he is satisfied that the detention is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life hereof ..;30 and if he is so satisfied, he may make an order directing that person be detained for any period not exceeding two years.31 The original provision of s.8(1) gave the power to detain to the Yang Di Pertuan Agong and not to the Minister. This was changed in 196632 when the Kings power was taken over directly by the Minister, a position which even Singapore does not emulate today.33 There was no clear rationale for this take over of detaining power by the Minister. In effect, by virtue of Article 40 of the Constitution, the Agong essentially acts on the advice of the cabinet or anyone acting on its behalf. In this regard, any detention order signed by the King was really the executive order of the Minister. The only plausible reason to the change, as elucidated by a former Attorney-General,34 was that with hundreds of detention orders to be signed it was highly inefficacious for the King to be signing a multiplicity of orders every year.
Section 22 empowers the Minister to prohibit either absolutely or subject to such conditions as he may prescribe the printing, publication, sale, issue .or possession of such documents or publications. He may do any of the above35 if he finds that the publication:
(a) contains any incitement to violence;
(b) counsels disobedience to the law;
(c) calculated or likely to lead to the breach of the peace, or to promote feelings of hostility between the different races or classes of the population; or
(d) is prejudicial to the national interest, public order or security of Malaysia.
It is bewildering to note that s.13 of the Printing and Publications Act 198436 (PPA) render somewhat similar effect although worded in a different way. One might say that in this particular respect there is an area of power overlap between the ISA and PPA.
Section 57 under Chapter III, prescribes the death penalty for offences relating to unlawful possession of firearms, ammunition and explosives within a given security area. Conviction under this section carries the death penalty. The Attorney-General is given a wide discretion as to whether to prosecute an offender under s.57 of the ISA or under s.8 of the Arms Act 196037 which upon conviction carries a lesser penalty.38 There have been cases challenging his wide and arbitrary power in prosecuting persons under various instruments. However, none of these cases has found favour with those who allege that the Attorney-General wields discriminatory powers of prosecution, a state of affairs which has been alleged to contravene Article 8(1) of the Constitution on the ground of discrimination.39
Section 73 gives the police wide powers of arrest without warrant with a view to detaining a suspect under s.8. All that is required is for a police to have reason to believe that a person acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.40 Other offences under the Act are punishable with imprisonment for a term not exceeding three years and are non-bailable.41
Amendments to the Internal Security Act, totalling 20 in all since its enactment in 1960, contain an array of enhanced powers for the Minister as well as for the Police.42 In all these amendments the trend has not been to strengthen the rule of law but to add on to the already formidable array of executive powers under the Act as well as those in other legislations.
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